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HomeMy WebLinkAbout10-1951f % % Robert F. Horn, Esquire White and Williams, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 215-864-7132 HARTFORD ACCIDENT AND INDEMNITY INSURANCE COMPANY, as subrogee of MCGINLEY MAINTENANCE, INC. and/or WILLIAM RODRIGUES Hartford Plaza Hartford CT 06115 Plaintiff, VS. PEPSICO, INC. 150 Fayetteville St., Box 1011 Raleigh NC 27601 Defendant. RM-CERCE O TFE P; OT 2010 Wgip 19 AN 10: 12 C! p6' A' TY COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED CASE NO.: 10 -145 1 lam, , i t TE'm PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY/CLERK: Kindly issue writ of summons in the above case. Writ of Summons shall be issued and forwarded to Attorney. Robert F. Horn, Esquire White and Williams, LLP Supreme Court ID No. 78036 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 215-864-7132 Date: March 18, 2010 G #Qa•oo PA Arq e a3q 13(0 6107829v.1 Robert F. Horn, Esquire White and Williams, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 215-864-7132 HARTFORD ACCIDENT AND INDEMNITY INSURANCE COMPANY, as subrogee of MCGINLEY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ Hartford Plaza Hartford CT 06115 Plaintiff, vs. t)~ TNi" ~'^'~~~.Y~~ ~~i'A~Y ZQiQ Jt1~ 24 P19 Z~ 44 COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED CASE NO.: 2010-01951 PEPSICO, INC. d/b/a Pepsi Cola North America 150 Fayetteville St., Box 1011 Raleigh NC 27601 Defendant. STIPULATION TO AMEND COMPLAINT It is hereby stipulated by and between all parties that the caption shall be amended to replace PepsiCo., Inc. with PepsiCo, Inc. d/b/a Pepsi Cola North America, and replace William Rodrigues with William Rodriguez. WHITE AND WILLIAMS LLP ~j ~---~. B obe Horn, Esquire Attorneys for Plaintiff Dated: June 2, 2010 NAULTY, SCARICAMAZZA & McDEVITT, LLC BY: ~ ~!i L~ Gerard X. Smith, Esquire Attorneys for Defendant 6370625v.1 r + Robert F. Horn, Esquire White and Williams, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 215-864-7132 HARTFORD ACCIDENT AND INDEMNITY INSURANCE COMPANY, as subrogee of MCGINLEY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ Hartford Plaza Hanford CT 06115 Plaintiff, vs. PEPSICO, INC. d/b/a Pepsi Cola North America 150 Fayetteville St., Box 1011 Raleigh NC 27601 Defendant. FIt.~L-t~i==i W~ Zola ~u~~ 30 ~ ~~ ~~ ~.~-; . { COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED CASE NO.: 2010-01951 STIPULATION TO AMEND COMPLAINT It is hereby stipulated by and between all parties that the caption shall be amended to replace PepsiCo., Inc. with PepsiCo„ Inc. d/b/a Pepsi Cola North America, and replace William Rodrigues with William Rodriguez. WHITE AND WILLIAMS LLP ~----~, B U obe Horn, Esquire Attorneys for Plaintiff Dated: June 2, 2010 NAULTY, SCARICAMAZZA & McDEVITT, LLC BY: ~ ~ ~%~'`' Gerard X. Smith, Esquire Attorneys for Defendant 6370625v.1 Robert F. Horn, Esquire White and Williams, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 215-864-7132 HARTFORD ACCIDENT AND INDEMNITY INSURANCE COMPANY, as subrogee of MCGINLEY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ Hartford Plaza Hartford CT 06115 COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED CASE NO.: 2010-01951 Plaintiff, vs. : PEPSICO, INC. d/b/a Pepsi Cola North America 150 Fayetteville St., Box 1011 Raleigh NC 27601 Defendant. CERTIFICATE OF SERVICE I, Robert Horn, Esquire, hereby certify that on this ~'of June, 2020, I caused a true and correct copy of the foregoing Stipulation to Amend the Complaint via First Class Mail upon defendants at the following addresses: Gerard X. Smith, Esquire Naulty, Scaricamazza & McDevitt, LLC 1617 John F. Kennedy Boulevard One Penn Center, suite 750 Philadelphia, PA 19103 AND WILLIAMS, LLP gy; L- Robert .Horn, Esquire Attorney for Plaintiff 6370625v.1 OF THE PRO NO FILED-OFFICE ARY 2010 NOV 24 PH 1: t ! CU PENS NO COUNTY NSYLVANIA NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard One Penn Center, Suite 750 Philadelphia, PA 19103 (215) 568-5116 To the herein parties you are hereby notified to plead to the enclosed Answer and New Matter within twenty (20) days of service thereof or a default judgment may be entered against you."`""" (,?t4,vul X. 5+, F.? Attorney for Defendant ATTORNEY FOR DEFENDANT HARTFORD ACCIDENT AND INDEMNITY I COURT OF COMMON PLEAS INSURANCE CO., as subrogee of MCGINLEY CUMBERLAND COUNTY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ 1 NO. 10-1951 VS PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA ANSWER AND NEW MATTER OF DEFENDANT, PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA, TO PLAINTIFFS' COMPLAINT 1. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 1 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 2. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 2 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 3. It is admitted that Answering Defendant did lease a distribution facility in Cumberland County at 1301 Distribution Drive, Carlisle, PA. The remaining allegations contained in Paragraph 3 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 4. Denied. The allegations contained in Paragraph 4 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. 5. Jurisdiction is acknowledged. 6. Venue is acknowledged. 7. Denied. The allegations contained in Paragraph 7 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. 8. Denied. The allegations contained in Paragraph 8 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, and to the extent that a response is required, it is specifically denied that Answering Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, owned or maintained the "subject machine" in question. As to the remaining averments contained in Paragraph 8 of Plaintiffs' Complaint, Answering Defendant is without sufficient knowledge to form a belief as to the truth or accuracy of same and, therefore, these averments are denied and strict proof thereof is demanded. 9. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 9 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 10. Denied. The allegations contained in Paragraph 10 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant acted negligently and/or that Answering Defendant maintained the machine in question. The remaining allegations contained in Paragraph 10 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 11. Upon information and belief admitted. 12. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 12 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 13. Denied. The allegations contained in Paragraph 13 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. COUNT ONE 14. Answering Defendant hereby incorporates by reference its answers to Paragraphs 1 through 13 of Plaintiffs' Complaint as if same were fully set forth at length herein. -- 2 -- 15. Denied. The allegations contained in Paragraph 15 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, the equipment in question was neither owned, maintained, repaired or serviced by Answering Defendant. The remaining allegations contained in Paragraph 15 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 16. Denied. The allegations contained in Paragraph 16 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant had notice or knowledge of any "dangerous or defective condition" of the equipment in question. The equipment in question was serviced and maintained by independent third parties and not by Answering Defendant. 17. Denied. The allegations contained in Paragraph 17 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant breached any duty of care owed to Mr. Rodriguez. Moreover, it is denied that Answering Defendant: a. failed to properly maintain, repair and/or service the Unit to ensure that the Unit was in safe condition for intended use by its employees, agents, subcontractors and/or representatives; b. failed to properly repair a dangerously defective condition of the Unit that it knew or reasonably should have known created an unreasonable risk of harm to its employees, agents, subcontractors and/or representatives; C. failed to warn or provide notice of a dangerously defective condition of the Unit that created an unreasonable risk of harm to its employees, agents, subcontractors and/or representatives; d. failed to use due care under the circumstances. On the contrary, at all times material hereto, Answering Defendant acted with due and proper care under the circumstances. 18. Denied. The allegations contained in Paragraph 18 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant acted negligently and/or that said negligence was a direct and proximate cause of the alleged injuries or damages of William Rodriguez. -- 3 -- COUNT TWO 19. Answering Defendant hereby incorporates by reference its answers to Paragraphs 1 through 18 of Plaintiffs' Complaint as if same were fully set forth at length herein. 20. Denied. The allegations contained in Paragraph 20 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant either owned or designed as a sophisticated user, modified, installed, maintained, distributed, sold or manufactured the subject machine. It is denied that Answering Defendant had any notice or knowledge of any alleged defect on the machine at any time prior to Plaintiff's accident. 21. Denied. The allegations contained in Paragraph 21 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant, while acknowledging that the machine was at its premises, denies that it had "custody and control" as alleged by Plaintiffs. Further, it is denied that Answering Defendant was aware of any "inadequate safety equipment" for the subject machine. 22. Denied. The allegations contained in Paragraph 22 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that there existed any dangerous or defective machine of which Answering Defendant was knowledgeable. It is further denied that Answering Defendant is "strictly liable" to the Plaintiffs. Furthermore, it is denied that Answering Defendant is liable in: a.) designing, installing, manufacturing, selling or distributing the subject machine that defendant knew or reasonably should have known subjected plaintiff to an unreasonable risk of injury or injury; b.) designing, installing, manufacturing, selling or distributing a defective subject machine when defendant knew or should have known that said subject machine would pose a threat of bodily harm or injury to users relying on the security of the subject machine; c.) designing, installing, manufacturing, selling or distributing the subject machine which when used for its intended purpose was likely to pose a threat of bodily harm or injury to users relying on the security of the subject machine; d.) misrepresenting the uses and attributes of the subject machine upon which misrepresentations plaintiff relied to his detriment; -- 4 -- e.) selling, installing or distributing the subject machine with instructions and warnings that defendant knew or reasonably should have known were improper, inadequate and that subjected plaintiff to an unreasonable risk of injury or injury; f.) designing, installing, manufacturing, selling or distributing the subject machine in a dangerously defective condition that posed an unreasonable risk of injury or injury; g.) designing, installing, manufacturing, selling or distributing the subject machine with inadequate component parts which defendant knew or should have known subjected plaintiff to an unreasonable risk of injury or injury; h.) designing, manufacturing, selling, installing and distributing the subject machine that was not safe for all reasonably foreseeable uses; and i.) failing to properly guard the user from bodily injury or injury resulting from a defect of the subject machine. On the contrary, at all times material hereto, Answering Defendant acted with due and proper care under the circumstances. 24. Denied. The allegations contained in Paragraph 24 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, to the extent that a response is required, Answering Defendant is without sufficient knowledge to form a belief as to the truth or accuracy of same and, therefore, these averments are denied and strict proof thereof is demanded. 25. Denied. The allegations contained in Paragraph 25 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant was aware of any dangerous or defective condition of the subject machine and/or that is directly and/or proximately liable to the Plaintiffs due to same. WHEREFORE, Answering Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby demands judgment in its favor and against Plaintiffs, Hartford Accident and Indemnity Insurance Co., as subrogee of McGinley Maintenance, Inc. and/or William Rodriguez, together with costs of suit including reasonable attorney's fees if allowed by law. -- 5 -- NEW MATTER 26. Plaintiffs' Complaint must be barred by the applicable Statute of Limitations. 27. If Plaintiffs sustained the injuries and damages as alleged in their Complaint, then same must be reduced by the provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. §7100. 28. Plaintiffs' Complaint fails to state a claim upon which relief may be granted. 29. If Plaintiffs sustained the injuries and damages as alleged in their Complaint, then same were not proximately caused by any action or failure to act on behalf of Answering Defendant or any of its employees acting within the course and scope of their employment and within furtherance of Answering Defendant's business. 30. Plaintiffs have failed to mitigate their damages. 31. If Plaintiffs sustained the injuries and damages as alleged in Plaintiffs' Complaint, then same occurred when Plaintiff knowingly and voluntarily encountered a known danger thereby assuming the risk of their injuries. 32. If Plaintiffs sustained the injuries and damages as alleged in Plaintiffs' Complaint, then same were caused by other entities over which Answering Defendant has no control. 33. At all times material hereto, Answering Defendant acted with due and proper care under the circumstances. 34. Answering Defendant had no notice of the allegedly defective condition. 35. Plaintiffs' claims are barred, in whole or in part, by the provisions of the Pennsylvania Worker's Compensation Act, and said Act is incorporated by reference as fully as though the same were herein set forth at length. 77 P.S. §101, et seg. 36. Plaintiffs' claims must be barred and/or reduced as Plaintiff or other parties modified, altered or misused the product in question. WHEREFORE, Answering Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby demands judgment in its favor and against Plaintiffs, Hartford Accident and Indemnity Insurance Co., as subrogee of McGinley Maintenance, Inc. and/or William Rodriguez, together with costs of suit including reasonable attorney's fees if allowed by law. NAULTY, SCARICAMAZZA & MCDEVITT, LLC. ,L -A., BY: GERARD X. SMITH, ESQUIRE Attorney for Defendant -- 6 -- VERIFICATION I, Gerard X. Smith, hereby verify that I am the Attorney for Defendant and that the foregoing Answer to Request for Admissions is true and correct to the best of my knowledge, information and belief. BY: GERARD X. SMITH 66-27612 -- 7 -- i NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard One Penn Center, Suite 750 Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR DEFENDANT HARTFORD ACCIDENT AND INDEMNITY ; COURT OF COMMON PLEAS INSURANCE CO., as subrogee of MCGINLEY CUMBERLAND COUNTY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ 1 NO. 10-1951 VS PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA CERTIFICATE OF SERVICE I, Gerard X. Smith, Esquire, hereby certify that I served a copy of the foregoing Answer and New Matter to Plaintiffs' Complaint via U.S. Mail, First Class, postage prepaid, addressed as follows: Robert F. Horn, Esquire White & Williams, LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 NAULTY, SCARICAMAZZA & McDEVITT, LLC. Z? BY: GERARD X. SMITH, ESQUIRE Attorney for Defendant -- 8 -- NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 HARTFORD ACCIDENT AND INDEMNITY i INSURANCE CO., AS SUBROGEE OF MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ I VS PEPSICO., INC. D/B/A PEPSI COLA NORTH AMERICA 2?e? ?aR crU?gE??S• ?'? a?1a Q? ATTORNEY FOR DEFENDANT PepsiCo., Inc. d/b/a Pepsi Cola North America COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-1951 DEFENDANT, PEPSICO., INC. d/b/a PEPSI COLA NORTH AMERICA'S MOTION FOR LEAVE OF COURT TO JOIN ADDITIONAL DEFENDANTS LANTECH.COM LLC AND XPEDX Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America (hereinafter "PepsiCo."), by and through its attorneys, Naulty, Scaricamazza & McDevitt, LLC, hereby petitions this Court pursuant to Pa.R.C.P. 2253 for an Order allowing the joinder of Lantech.com, LLC (hereinafter, "Lantech") and Xpedx as Additional Defendants in this action, and in support thereof alleges the following: Plaintiff initiated this action via Writ of Summons. Plaintiff thereafter filed a Complaint filed on or about May 28, 2010. (A true and correct copy of said Complaint has been attached hereto and marked as Exhibit "A'J. 2. Said Complaint was served on Defendant on or about June 1, 2010. 3. Defendant PepsiCo. filed its Answer and New Matter to Plaintiff's Complaint with this Honorable Court on or about November 24, 2010. (A true and correct copy of said Answer has been attached hereto and marked as Exhibit "B") 4. This lawsuit is a subrogation action stemming from an incident occurring on March 21, 2008, when William Rodriguez, an employee of McGinley Maintenance, Inc., was allegedly injured by an electrical shock he received while stretch wrapping pallets at Defendant's facility in Carlisle, Pennsylvania. (See Exhibit "A"). --2-- 5. As a result of said accident, Plaintiff, Hartford Accident and Indemnity Insurance Company (hereinafter, "Hartford"), McGinley's worker's compensation insurance carrier, paid in excess of $30,000 in medical and indemnity benefits to Mr. Rodriguez for his alleged injuries. 6. Hartford now seeks reimbursement from Defendant for said moneys. 7. It is believed, and therefore averred, that the accident was caused by static electricity while William Rodriguez was using a Q300 Lantech stretch wrapper. 8. Lantech manufactured and/or installed the stretch wrapper in question. In the aftermath of the accident on August 20, 2008, Lantech inspected the stretch wrapper and found that the ground between the roll carriage and the machine frame work was poor and the grounding points were covered with powder coat. Lantech also installed a static eliminator to assist in dissipating the static post- accident. (A true and correct copy of the Lantech Service Log has been attached hereto and marked as Exhibit "C"). 9. Prior to March 21, 2008, Moving Defendant entered into a Planned Maintenance Service Agreement with Proposed Additional Defendant Xpedx. Pursuant to said Agreement, Xpedx was to provide maintenance to certain equipment, including the stretch wrapper in question. (A true and correct copy of the Planned Maintenance Service Agreement has been attached hereto and marked as Exhibit V"). 10. Moving Defendant avers that the incident in question was not due to the negligence of Moving Defendant, but to the negligent manufacture, installation and/or maintenance of the stretch wrapper in question. 11. It is believed, and therefore averred, that proposed Additional Defendant, Lantech.com, LLC is a Kentucky business entity and/or association duly authorized to do business within the state of Pennsylvania, with a place of business located 11000 Bluegrass Parkway, Louisville, Kentucky 40299. 12. It is believed, and therefore averred, that proposed Additional Defendant, Xpedx is a business entity and/or association duly organized to do business within the state of Pennsylvania, with a place of business located at 221 B South 10th Street in Lemoyne, Pennsylvania. -- 3 -- 13. The proposed Additional Defendants are not currently parties to this action. (The proposed Joinder Complaint is attached hereto and marked as Exhibit "E"). 14. If this action should proceed to a trial, then the proposed Additional Defendants would be liable over to Defendant PepsiCo., in contribution and/or indemnity, contractually and/or otherwise. 15. The proposed joinder of Additional Defendants will not prejudice the Plaintiff, but will ensure a proper and just resolution of plaintiff's alleged cause of action with all the necessary parties involved. 16. Moreover, joining the Additional Defendants herein will effect the fairness of the proceeding by increasing the availability of relevant information to all parties involved. 17. By permitting the joinder of Additional Defendants, it will afford the original party to this action a better opportunity to gather all of the information with regard to the cause of plaintiff's alleged accident. 18. The joinder of the Additional Defendants will not complicate any of the issues herein. In fact, the joinder of the Additional Defendants would increase the availability of information to effectively determine these issues. 19. Finally, Joinder would also promote judicial economy and efficiency by resolving all of the issues with regard to Plaintiff's loss in a single action as opposed to expensive multiple actions. WHEREFORE, Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, respectfully requests that this Honorable Court grant its Motion to Join Additional Defendants and permit filing of a Joinder Complaint by Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America against the proposed Additional Defendants Lantech.com, LLC and Xpedx. Respectfully submitted, NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America --4-- NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 HARTFORD ACCIDENT AND INDEMNITY INSURANCE CO., AS SUBROGEE OF MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ I VS PEPSICO., INC. D/B/A PEPSI COLA NORTH AMERICA 1. Factual Background: ATTORNEY FOR DEFENDANT PepsiCo., Inc. d/b/a Pepsi Cola North America COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-1951 Plaintiff initiated this action via Writ of Summons. Plaintiff thereafter filed a Complaint filed on or about May 28, 2010. (See Exhibit "A'?. Said Complaint was served on Defendant on or about June 1, 2010. Defendant PepsiCo. filed its Answer and New Matter to Plaintiff's Complaint with this Honorable Court on or about November 24, 2010. (See Exhibit "B") This lawsuit is a subrogation action stemming from an incident occurring on March 21, 2008 when William Rodriguez, an employee of McGinley Maintenance, Inc., was allegedly injured by an electrical shock he received while shrink wrapping pallets at Defendant's facility in Carlisle, PA. (See Exhibit "A"). It is believed that the accident was caused by static electricity while William Rodriguez was using a Q300 Lantech stretch wrapper. Lantech.com, LLC manufactured and/or installed the stretch wrapper in question. In the aftermath of the accident on August 20, 2008, Lantech inspected the stretch wrapper and found that the ground between the roll carriage and the machine frame work was poor and the grounding points were covered with powder coat. Lantech also installed a static eliminator to assist in dissipating the static. (See Exhibit "C"). -- 5 -- Prior to March 21, 2008, Moving Defendant entered into a Planned Maintenance Service Agreement with Proposed Additional Defendant Xpedx. Pursuant to said Agreement, Xpedx was to provide maintenance to certain equipment, including the stretch wrapper in question. (See Exhibit «p„ As a result of said accident, Plaintiff, Hartford Accident and Indemnity Insurance Company, McGinley's worker's compensation insurance carrier, has paid in excess of $30,000 in medical and indemnity benefits to Mr. Rodriguez for his alleged injuries. II. Statement of question involved: Should Defendant's Motion for Leave to Join Additional Defendants be granted against where the potential additional parties are not current parties to the suit, where the alleged incident involves a product manufactured and/or serviced by the proposed Additional Defendants, where it would promote judicial economy and efficiency by resolving all of the issues with regard to Plaintiff's occurrence in a single action as opposed to expensive multiple actions, where Plaintiff would not be prejudiced by joinder of the potential additional parties, and where it will not cause undue delay? Suggested Answer: Yes. III. Argument: Pennsylvania Rule of Civil Procedure 2253 governs the Joinder of Additional Defendants' Rule 2253 provides in pertinent part: (N)either praecipe for a Writ to join an additional defendant nor a complaint, if the joinder is commenced by a complaint shall be filed by the original defendant or an additional defendant later than sixty days after the service upon the original defendant of the initial pleadings of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown. Pa. R. C. P. 2253. The Courts have also established that joinder is proper if the joining party can show the following: (1) That joinder is based on proper grounds; (2) That some reasonable excuse exists for the delay in commencing joinder proceedings; and (3) That the original Plaintiff will not be prejudiced by the late joinder. -- 6 -- Lawrence v. Meeker, 717 A.2d 1046 (1998). Whether there is sufficient cause to allow late joinder of an additional defendant is a matter within the sound discretion of the trial court. Mutual Industries, Inc. v. Weinberg, 423 Pa. Super. 328, 621 A.2d 140, 143 (Pa. Super. 1993). Nevertheless, the court "should be guided by the objectives sought to be achieved by use of the additional defendant procedure." Zakian v. Liljestrand, 438 Pa. 249, 256, 264 A.2d 638, 641 (1970). Joinder should be granted when it can "simplify and expedite the disposition of matters involving numerous parties without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation." Id. (citations omitted). The proposed Additional Defendants are not currently parties to this action. If this action should proceed to a trial, then the proposed Additional Defendants would be liable over to PepsiCo. in negligence, contribution, and/or indemnity. The joinder is based on proper grounds in that the stretch wrapper machine allegedly causing Plaintiff's injuries was manufactured and/or serviced by the Additional Defendants. Moving Defendants believe that Approximately ten (10) months has elapsed since the service of the Complaint on the Joining Defendant. This time was utilized in investigating the incident and gathering documentation. This matter is still in the discovery phase. The parties have exchanged written discovery and no depositions have gone forward to date. The proposed joinder of Additional Defendants will not prejudice the Plaintiff, but will ensure a proper and just resolution of Plaintiff's alleged cause of action with all the necessary parties involved. Moreover, joining the Additional Defendants herein will effect the fairness of the proceeding by increasing the availability of relevant information to all parties involved. By permitting the joinder of Additional Defendants, it will afford the original parties to this action a better opportunity to gather all of the information with regard to the cause of plaintiff's alleged accident. The joinder of the Additional Defendants will not complicate any of the issues herein. In fact, joinder of Additional Defendants would increase the availability of information to effectively determine these issues. Furthermore, the joinder of Additional Defendants would promote judicial economy and --7-- efficiency by resolving all of the issues with regard to Plaintiff's occurrence in a single action as opposed to expensive multiple actions. IV. Conclusion: Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, respectfully requests that this Honorable Court grant its Motion for Leave to Join Additional Defendants and permit filing of a Joinder Complaint by Defendant against the proposed Additional Defendants. Respectfully submitted, NAULTY, SCARICAMAZZA & McDEVITT, LTD. BY: GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America -- 8 -- VERIFICATION I, Gerard X. Smith, Esquire, do hereby verify that I am attorney for the Defendant in the foregoing action and that the facts set forth in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. ?"X Z--- GERARD X. SMITH, ESQUIRE -- 9 -- NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 HARTFORD ACCIDENT AND INDEMNITY INSURANCE CO., AS SUBROGEE OF MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ V. PEPSICO., INC. D/B/A PEPSI COLA NORTH AMERICA ATTORNEY FOR DEFENDANT PepsiCo., Inc d/b/a Pepsi Cola North America COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-1951 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within Motion to Join Additional Defendants was made to the counsel named below, by United States Mail, postage prepaid: Robert F. Horn, Esquire White & Williams, LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: Z ? DATED GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America -- 10 -- Robert F. Horn, Esquire White and Williams, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 215-864-7132 hornr@whiteandwiliiams.com HARTFORD ACCIDENT AND INDEMNITY ; INSURANCE COMPANY, as sobrogee of MCGINLEY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ Hartford Plaza Hartford CT 06115 Plaintiff, Vs. COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED CASE NO.: 2010-01951 ARBITRATION CASE PEPSICO, INC. 150 Fayetteville St., Box 1011 Raleigh NC 27601 Defendant. 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 after this Complaint and Notice are served by entering a written appearance personalty 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 OR CANNOT AFFORD ONE GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU MAY GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S BEDFORD STREET CARLISLE PA 17013 800 9919M8 C243287v.1 EXHIBIT A Robert F.'Horn, Esquire White and Williams, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA I9103 215-864-7132 hornr@whiteandwilliams.com HARTFORD ACCIDENT AND INDEMNITY INSURANCE COMPANY, as subrogee of MCGINLEY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ Hartford Plaza Hartford CT 06115 Plaintiff, vs. PEPSICO, INC. 150 Fayetteville St., Box 1011 Raleigh NC 27601 Defendant. COMPLAINT COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED CASE NO.: 2010-01951 ARBITRATION CASE Plaintiff, Hartford Accident and Indemnity Insurance Company a/s/o McGinley Maintenance, Inc. and/or William Rodriguez, by and through its attorneys, White and Williams LLP, hereby alleges and-states as follows: THE PARTIES 1. Plaintiff Hartford Accident and Indemnity Insurance Company a/s/o McGinley Maintenance, Inc. and/or William Rodriguez (hereinafter "Hartford") is a Connecticut corporation and a licensed insurance provider in the State of Connecticut with a principal place of business located at Hanford Plaza, Hartford, Connecticut. At all relevant times hereto Hartford was authorized to issue policies of insurance in the Commonwealth of Pennsylvania. 6243287v.] I 2. McGinley Maintenance, Inc. (hereinafter "McGinley") is a Pennsylvania corporation with its principal place of business located in Belle Vernon, Pennsylvania. 3 Upon information and belief, Defendant PepsiCo, Inc. (hereinafter "PepsiCo") is corporation who owned and operated a packaging and distribution facility in Cumberland County located at 1301 Distribution Drive, Carlisle, Pennsylvania where the subject accident occurred. 4. At all times relevant and material hereto, PepsiCo was in the business of manufacturing, assembling, distributing, selling, and supplying, inter alia, beverage and food products: JURISDICTION AND VENUE This Court has jurisdiction over the Defendant and the subject matter of this action based upon the following substantial contacts with the Commonwealth of Pennsylvania: (a) The Defendant has conducted and continues to conduct substantial business in Pennsylvania on a regular basis; and (b) The incident giving rise to this action occurred in Pennsylvania. 6. Venue is proper in Cumberland County because Defendant regularly conducts business in Cumberland County, and the incident giving rise to this action occurred in Cumberland County. FACTUAL BACKGROUND Prior to March 21, 2008, Defendant PepsiCo contracted McGinley to perform packaging and shipping services at one of PepsiCo's packaging facilities located at 1301 Distribution Drive, Carlisle Pennsylvania 17013 (hereinafter "Subject Property"). 8. At all times relevant, hereto, William Rodriguez was employed by McGinley Maintenance and worked at the Subject Property performing packaging services, including 6243287v.1 2 shrink wrapping pallets the using an electric shrink wrap machine (hereinafter "subject machine"), owned and maintained by PepsiCo. 9. On March 21, 2008, Mr. Rodriguez was wrapping a pallet using the subject machine when he was he jolted by a severe electrical shock from the subject machine. The electrical shock caused Mr. Rodriguez to fall to ground where he struck his head. 10. The injuries sustained by Mr. Rodriguez was the direct result of the Pespico'5 negligent maintenance of the subject machine and negligent failure to warn its employees,. agents, representatives, and subcontractors of the dangerous defects of the subject machine. 11. At all times relevant hereto, Hartford workers' compensation insurance coverage to McGinley. 12. Pursuant to the terms of the policy, Hartford paid in excess of $30,557.70 in medical and indemnity benefits to Mr. Rodriguez for injuries he sustained from the electric shock and resulting fall. 13. By virtue of the payments made to Mr. Rodriguez in accordance with the terms and conditions of the policy, Hartford is now subrogated to the rights of its insured against,the party or parties responsible for Mr. Rodriguez's injuries. COUNT ONE - NEGLIGENCE Plaintiff v. PepsiCo, Inc. 14. Plaintiff incorporates the allegations contained in paragraphs l through 13 as if set forth at length. 15. PepsiCo owed a duty of care to Mr. Rodriguez to properly maintain, repair and/or service its equipment to ensure that, such equipment is in a condition that was safe for its intended and use by its business invitees, employees, agents, subcontractors and/or representatives. 3 6243287v. I 16. PepsiCo also owed a duty of care to Mt. Rodriguez to warn or provide notice to its business invitees, employees, agents, subcontractors and/or representatives of dangerous conditions of its equipment or to prevent use of such dangerous equipment by its employees, agents, subcontractors and/or representatives. IT PepsiCo breached its duty of care owed to Mr. Rodriguez in one or more of the following ways: a. Failing to properly maintain, repair, and/or service the Unit to ensure that the Unit was in safe condition for intended use by its employees, agents, subcontractors and/or representatives; b. Failing to properly repair a dangerously defective condition of the Unit that it knew or reasonably should have known created an unreasonable risk of harm to its employees, agents, subcontractors and/or representatives; C. Failing to warn or provide notice of a dangerously defective condition of the Unit that created an unreasonable risk of harm to its employees, agents, subcontractors and/or representatives; d. Failing to use due care under the circumstances. 18. PepsiCo's negligence was a direct and proximate cause of Mr. Rodriguez's injuries, and as a result of Mr. Rodriguez's injury, Hartford paid workers' compensation benefits under $50,000.00. WHEREFORE, Plaintiff demands' judgment against Defendant PepsiCo for damages in an amount under $50,000.00 together with interest, attorney's fees, costs of suit, and such other relief the court may deem appropriate. 6243287v.1 .4 COUNT TWO - STRICT LIABILITY Plaintiff v. PepsiCo, Inc. 19. Plaintiff incorporates the allegations contained in the preceding paragraphs as if set forth at length, 20. PepsiCo owned, designed as a sophisticated user, modified, installed, maintained, distributed, sold, and/or manufactured the subject machine with a dangerous defect that caused severe electric shock to individual(s). 21. PepsiCo had custody and control of the subject machine which had inadequate safety equipment to prevent shock and/or lack of a warning of the damages to users of the subject machine. 22. The subject machine's dangerous defective caused the Mr. Rodriguez to be shocked for which Pepsico is strictly liable pursuant to sections 402(A) and 402($) of the applicable Restatement of Torts in: a) designing, installing; manufacturing, selling and distributing the subject machine that defendant knew or reasonably should have known subjected plaintiff to an unreasonable risk of injury or injury; h.) designing, installing, manufacturing, selling and distributing a defective subject machine when defendant knew or should have known that said subject machine would pose a threat of bodily harm or injury to users relying on the security of the subject machine; C-) designing, installing, manufacturing, selling and distributing the subject machine which when used for its intended purpose was likely to pose a threat of bodily harm or injury to users relying on the security of the subject machine; d,) misrepresenting the uses and attributes of the subject machine upon which misrepresentations plaintiff relied to his detriment; e) selling, installing, and distributing the subject machine with instructions and warnings that defendant knew or reasonably should have known were improper, inadequate and that subjected plaintiff to an unreasonable risk of injury or injury; 5 5243287v.1 f.) designing, installing, manufacturing, selling and distributing the subject machine' in a dangerously defective condition that posed an unreasonable risk of injury or injury; g) designing, installing, manufacturing, selling and distributing the subject machine with inadequate component parts which defendant knew or should have known subjected plaintiff to an unreasopable risk of injury or injury; h) designing, manufacturing, selling, installing and distributing the subject machine that was not safe for all reasonably foreseeable uses; and i.) failing to properly guard the user from bodily injury or injury resulting from a defect of the subject machine. 24. The subject machine could have been designed, installed and manufactured with. better grounding on the safety devices preventing the shocking of Mr. Rodriguez. 25: As a direct and proximate result of dangerous defect of the subject machine for which defendant is strictly liable pursuant to Section 402(A) and 402(B) of the applicable Restatement of Torts, Mr. Rodriguez sustained bodily injury. As a result of Mr. Rodriguez's injury, Hartford paid workers' compensation benefits in an amount under $50,000.00. WHEREFORE, Plaintiff demands judgment against Defendant PepsiCo for damages in the amount under $50,000.00 together with interest, attorney's fees', costs of suit, and such other relief the court may deem appropriate. WHITE AND WILLIAMS LLP By: /sl Robert F. Horn, Esquire I.D. No. PA 78036 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA,19103 Telephone: (215) 864-7132 Facsimile: (215) 789-6672 hornr@whiteandwilliams.com May 27, 20 .10 Attorneys for Plaintiff 6 6243287v. VERIFICATION I verify that the statements made in this Complaint are true and correct to the best of my knowledge and b6lief. I understand that false statements made herein are subject to penalties of 18 PA. C.S., Subsection 4904, relating to unsworn falsification to authorities. Date: May 27, 2010 --?.,.. Robert F. Horn 6243287YA CERTIFICATE OF SERVICE I, Robert F. Horn, hereby certify that a true and correct copy of the foregoing Plaintiffs Complaint was served via regular mail on the 27th day of May, 2010, on the following counsel. of record: PEPSICO, INC. 150 Fayetteville St., Box 101 Raleigh NC 27601 ober9FIHIorn, Esquire Dated: May 27, 2010 6243287v.1 OF THFE PROTHONOTARY 2010 NOV 24 PM .1.51 CUMBERLAND COUNTY PENNSYLVANIA NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard One Penn Center, Suite 750 Philadelphia, PA 19103 (215) 568-5116 HARTFORD ACCIDENT AND INDEMNITY INSURANCE CO., as subrogee of MCGINLEY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ VS PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA To the herein parties you are hereby notified to plead to the enclosed Answer and New Matter within twenty (20) days of service thereof or a default judgment may be entered against you. elm" X• <.,a, E Attorney for Defendant ATTORNEY FOR DEFENDANT COURT OF COMMON PLEAS CUMBERLAND COUNTY 1 NO. 10-1951 y)t(-L 1-4 1. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 1 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 2. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 2 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 3. It is admitted that Answering Defendant did lease a distribution facility in Cumberland County at 1301 Distribution Drive, Carlisle, PA. The remaining allegations contained in Paragraph 3 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 4. Denied. The allegations contained in Paragraph 4 of Plaintiffs' Comp EXH19IT conclusions of law to which no further response is required. J J t 5. Jurisdiction is acknowledged. 6. Venue is acknowledged. 7. Denied. The allegations contained in Paragraph 7 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. 8. Denied. The allegations contained in Paragraph 8 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, and to the extent that a response is required, it is specifically denied that Answering Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, owned or maintained the "subject machine" in question. As to the remaining averments contained in Paragraph 8 of Plaintiffs' Complaint, Answering Defendant is without sufficient knowledge to form a belief as to the truth or accuracy of same and, therefore, these averments are denied and strict proof thereof is demanded. 9. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 9 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 10. Denied. The allegations contained in Paragraph 10 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant acted negligently and/or that Answering Defendant maintained the machine in question. The remaining allegations contained in Paragraph 10 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 11. Upon information and belief admitted. 12. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 12 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 13. Denied. The allegations contained in Paragraph 13 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. COUNT ONE 14. Answering Defendant hereby incorporates by reference its answers to Paragraphs 1 through 13 of Plaintiffs' Complaint as if same were fully set forth at length herein. -- 2 -- 15. Denied. The allegations contained in Paragraph 15 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, the equipment in question was neither owned, maintained, repaired or serviced by Answering Defendant. The remaining allegations contained in Paragraph 15 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 16. Denied. The allegations contained in Paragraph 16 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant had notice or knowledge of any "dangerous or defective condition" of the equipment in question. The equipment in question was serviced and maintained by independent third parties and not by Answering Defendant. 17. Denied. The allegations contained in Paragraph 17 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant breached any duty of care owed to Mr. Rodriguez. Moreover, it is denied that Answering Defendant: a. failed to properly maintain, repair and/or service the Unit to ensure that the Unit was in safe condition for intended use by its employees, agents, subcontractors and/or representatives; b. failed to properly repair a dangerously defective condition of the Unit that it knew or reasonably should have known created an unreasonable risk of harm to its employees, agents, subcontractors and/or representatives; C. failed to warn or provide notice of a dangerously defective condition of the Unit that created an unreasonable risk of harm to its employees, agents, subcontractors and/or representatives; d. failed to use due care under the circumstances. On the contrary, at all times material hereto, Answering Defendant acted with due and proper care under the circumstances. 18. Denied. The allegations contained in Paragraph 18 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant acted negligently and/or that said negligence was a direct and proximate cause of the alleged injuries or damages of William Rodriguez. -- 3 -- COUNT TWO 19. Answering Defendant hereby incorporates by reference its answers to Paragraphs 1 through 18 of Plaintiffs' Complaint as if same were fully set forth at length herein. 20. Denied. The allegations contained in Paragraph 20 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant either owned or designed as a sophisticated user, modified, installed, maintained, distributed, sold or manufactured the subject machine. It is denied that Answering Defendant had any notice or knowledge of any alleged defect on the machine at any time prior to Plaintiff's accident. 21. Denied. The allegations contained in Paragraph 21 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant, while acknowledging that the machine was at its premises, denies that it had "custody and control" as alleged by Plaintiffs. Further, it is denied that Answering Defendant was aware of any "inadequate safety equipment" for the subject machine. 22. Denied. The allegations contained in Paragraph 22 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that there existed any dangerous or defective machine of which Answering Defendant was knowledgeable. It is further denied that Answering Defendant is "strictly liable" to the Plaintiffs. Furthermore, it is denied that Answering Defendant is liable in: a.) designing, installing, manufacturing, selling or distributing the subject machine that defendant knew or reasonably should have known subjected plaintiff to an unreasonable risk of injury or injury; b.) designing, installing, manufacturing, selling or distributing a defective subject machine when defendant knew or should have known that said subject machine would pose a threat of bodily harm or injury to users relying on the security of the subject machine; C.) designing, installing, manufacturing, selling or distributing the subject machine which when used for its intended purpose was likely to pose a threat of bodily harm or injury to users relying on the security of the subject machine; d.) misrepresenting the uses and attributes of the subject machine upon which misrepresentations plaintiff relied to his detriment; --4-- e.) selling, installing or distributing the subject machine with instructions and warnings that defendant knew or reasonably should have known were improper, inadequate and that subjected plaintiff to an unreasonable risk of injury or injury; f.) designing, installing, manufacturing, selling or distributing the subject machine in a dangerously defective condition that posed an unreasonable risk of injury or injury; g.) designing, installing, manufacturing, selling or distributing the subject machine with inadequate component parts which defendant knew or should have known subjected plaintiff to an unreasonable risk of injury or injury; h.) designing, manufacturing, selling, installing and distributing the subject machine that was not safe for all reasonably foreseeable uses; and i.) failing to properly guard the user from bodily injury or injury resulting from a defect of the subject machine. On the contrary, at all times material hereto, Answering Defendant acted with due and proper care under the circumstances. 24. Denied. The allegations contained in Paragraph 24 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, to the extent that a response is required, Answering Defendant is without sufficient knowledge to form a belief as to the truth or accuracy of same and, therefore, these averments are denied and strict proof thereof is demanded. 25. Denied. The allegations contained in Paragraph 25 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant was aware of any dangerous or defective condition of the subject machine and/or that is directly and/or proximately liable to the Plaintiffs due to same. WHEREFORE, Answering Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby demands judgment in its favor and against Plaintiffs, Hartford Accident and Indemnity Insurance Co., as subrogee of McGinley Maintenance, Inc. and/or William Rodriguez, together with costs of suit including reasonable attorney's fees if allowed by law. -- 5 -- NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard One Penn Center, Suite 750 Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR DEFENDANT HARTFORD ACCIDENT AND INDEMNITY INSURANCE CO., as subrogee of MCGINLEY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ VS PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-1951 CERTIFICATE OF SERVICE I, Gerard X. Smith, Esquire, hereby certify that I served a copy of the foregoing Answer and New Matter to Plaintiffs' Complaint via U.S. Mail, First Class, postage prepaid, addressed as follows: Robert F. Horn, Esquire White & Williams, LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 NAULTY, SCARICAMAZZA & McDEVITT, LLC. )-L-- GERARD X. SMITH, ESQUIRE Attorney for Defendant --8-- ?j Lameckcam SMNd WAWPOr, castmMeft S*M JbWaobf ftANWft. Technical Services Group Service / Start-Up Log Machine User. PEPSICO Contaa Name: PEPSWO Address: 1301 DISTR=UrION DRIVE CARLIK4 PA 17013 USA Phone Number Email: Serial Number QN022359 Purpose of View Static issues 11000 Bluegrass Parkway Louisville, KY 40299 (502) 267-4200 (600) 86"322 Bill To. PEPSICO Contact Nam: SERVICE Address: 1301 DISTRIBUT ON DRIVE CARLZStE,PA 17013 USA Purchaser order* WARRANTY Phone Number mnmaqmmncaM.gm Email: Model: Q300 Analysis: - Wednesday 8/202008: Arrived on site and met with Maree Sommers about the static issues. After running a few test loads we determined that the issues were coming from the rollers with in the roil carriage its self. We found that the ground between the roll carriage and the machine frame work was poor and that some of the grounding points were covered with the powder coat and needed to be cleaned to assure a good ground. We also installed a static eliminator kit to assist in dissipating the static. Machine runs fine and has 1410 cycles on it at this time. 0 co m 0 O 0) N O V" 00 O O r O 0 0 w O N OD O Co O O N Follow Up: Data Plant Kars oe I Start up Canpia0e August 19, 2008 5ervi 1_p Msfluai in Paesesaion of, August 20, 2008 4.0 F7eid Enplnsar's Skrrab" Field Engineer's Name Mark Enibdton/OoW Ckrrlco Customer's Signature 17 Q/uc , --.- customer's Name Maree Sornrt?ws Customer Comment= ?Trsvet orrfr ? xg-: ig, 2006 6;1ll1 Rev. 12/07/07 J Co O 0 N as N O `? CO XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT Customer Name & Mailing Address: Pepsico 1301 Distribution Drive Carlisle, PA. 17013 Ship to Address: Pepsico 1301 Distribution Drive Carlisle, PA. 17013 Contact Name: Matt Surkosky Title: Telephone: (717) 960-4503 Email address: NA Initial Agreement (Tenn) : February 12008 to February 12009 XPEDX - EQUIPMENT SERVICE DEPARTMENT, hereinafter Company, agrees to provide (1) Service and (2) Scheduled Planned Maintenance support to the above named customer, hereinafter Customer, on the terns set forth herein. This Agreement shall cover the equipment listed on Exhibit B which Exhibit may be amended by mutual written agreement. 1. Acceptance: Customer agrees that Company shall have fifteen business (15) days from the date of its execution of this Agreement to inspect the Equipment (as listed on Exhibit B to determine whether the Equipment is in proper operating condition and free of any defects that would require prior repair, replacement, or adjustment of parts or assemblies. If Company does not find the Equipment to be in good working order, Company shall notify Customer of that fact. Customer shall then have ten business (10) days to notify Company as to whether Customer desires Company to repair the Equipment in order that such Equipment may be covered by this Agreement. Such repair will be billed to Customer at the Service Fees rate in Exhibit A. If Customer does not desire Company to repair the Equipment, or if Customer fails to notify Company within the ten business (10) day period, this Agreement shall be of no force or effect with respect to such piece of Equipment. 2. DeAWtions: A. 61Servke" is defined as cleaning, adjusting, lubricating, repairing, or replacing parts and components of the Equipment during the Term, other than labor listed on the Planned Maintenance Schedules attached hereto for each piece of Equipment and which is performed in connection with a pre-scheduled Planned Maintenance Appointment. VI-3-07 4) EXHIBIT D XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT B. "Planned Maintenance" is defined as those specific preventative maintenance tasks lasted on the Planned Maintenance Schedules attached hereto for each piece of Equipment and which is performed in connection with a pre-scheduled Planned Maintenance Appointment. Planned Maintenance does not include the repair or replacement of any systems, parts and components of the Equipment, including any perishable or expendable parts and supplies (such as light bulbs, fuses, or electrical components. 3. Term: The initial term of this agreement is as set forth on the front page of this Agreement. If no date is set forth, the Term shall commence as of the date xpedx executes this Agreement and the satisfaction of the conditions in Section 2 hereof. This Agreement may be continued for successive one year periods at the Company's then prevailing rates upon mutual written agreement of each the parties hereto. 4. Service Availability: Service calls may be placed by calling the Dispatch Center at (800) 358-3428. Company will provide Service under the terms of this Agreement, as indicated above Monday through Friday, 8:00am to 5:00pm, excluding any locally observed Holidays. 5. Charges, Taxes and Invoices: Customer may pay a flat periodic fee for the Planned Maintenance portion of this Agreement, or on a "pay as performed" basis. All other Services shall be billed on an hourly basis in each case in the amounts set forth on Exhibit A. Paris shall be billed as a separate invoice. All invoices for Planned Maintenance must be paid within the applicable payment terms and conditions. All other invoices are due and payable, in full, 30 days from date of invoice. Applicable taxes shall be added to any charges under this Agreement. If Service is rendered, at the Customer's request, during periods other than the Company's normal work day or hours, all Services shall be billed at the Company's then current prevailing overtime rates. If Customer fails to pay, when due, any invoice between Company and Customer, Company shall have the right to withhold service or terminate this Agreement, Customer will be charged and agrees to pay a late fee of 1.5% per month on all overdue payments. Customer shall pay all costs involved in collecting any outstanding money due Company, including reasonable attorneys' fees. 6. Exclusions: Planned Maintenance provided under this Agreement does not include repair of damage, increase in service time, or provision of replacement parts caused by or resulting from a) use of Equipment in a manner not recommended by Original Equipment Manufacturer (OEM); b) failure to continually provide a suitable working environment, including but not limited to, adequate and consistent electrical power, air conditioning or humidity control; c) the improper use, management, or supervision of covered Equipment, including without limitation; the use of supplies and perishable/expendable parts and components not recommended by the OEM; d) accident and/or natural disaster, including without limitation , limited to, fire, flood, water, wind, or lightning; e) electrical alterations, VI-3-07 XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT attachments or other devices not covered by this Agreement; or f) any damage or increase in Service time caused by excessive electrostatic discharge, improper grounding, improper power line protection, or environmental conditions not conducive to the proper operation of the Equipment. 7. Independent Contractor Relationship: The Company will perform all services under this Agreement as an independent contractor. While the Customer is interested in the outcome of the services provided under this Agreement, the conduct and control of the work will lie solely with the Company. & Equipment Location: All services under this Agreement will be provided on the Equipment only at the locations shown on Exhibit B. The Customer agrees to promptly notify Company of any change in Equipment location and abide by Company's determination with respect to changes in charges necessitated by the change in location. The Customer shall keep the area around the Equipment, as well as all entrances and exits, safe and free from hazards. The Customer shall maintain said area to at least the standards established by applicable building and occupancy codes and OSHA regulations. 9. Warranty: Company warrants that all labor shall be performed in a workmanlike manner. The Company's labor is warranted for twenty (20) calendar days from the date of service. All parts are subject to the applicable manufacturer's standard warranty. This warranty excludes all claims arising from any casualty, abuse or neglect of the Equipment. Other than as set forth herein, the Company disclaims any express and implied warranty, including but not limited to , warranties of merchantability, fitness for a particular purpose, or non-infringement, or warranties arising from course of dealing or usage of trade. 10. Limitation of Liability: Company shall not be held liable in the event that the Company's performance is limited, delayed or prevented in whole or in part, directly or indirectly, by any factor or cause whatsoever, beyond the Company's control.. CUSTOMER AGREES THAT IN NO EVENT SHALL COMPANY BE HELD LIABLE FOR BREACH OF THIS AGREEMENT OR FOR ANY ALLEGED NEGLIGENCE OF COMPANY OR ITS E_-WLOYEES, IN AN AMOUNT IN EXCESS OF THE AMOUNT PAID TO COMPANY FOR THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE FOR THE UNIT OF EQUIPMENT INVOLVED. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF DATA, LOSS OF PROFIT, OR LIABILITY TO THIRD PARTIES, HOWEVER CAUSED. 11. Indemnification: A. Company agrees to indemnify and hold Customer and its employees, officers and directors harmless against any and all claims, liabilities, suits, judgments, costs and expenses, VI-3-07 XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT including reasonable attorney fees, arising out of or resulting from Company's gross negligence or willful misconduct. B. Customer agrees to indetmW and hold Company harmless against any and all claims, liabilities, suits, judgments, costs and expense, including reasonable attorney fees, arising out of or resulting from Customer's gross negligence or wfliful misconduct including without limitation, the C'ustomer's or its employee's or agent's operation of any equipment without all safety devices in place and finIIy operational. 12. Insurance: A. Company shall maintain Commercial General Liability Insurance in the amount of $1,000,000 per occurrence for occurrence arising out of the Company's products and operations hereunder. Company shall name Customer as an additional insured under such policy and shall provide Customer with a certificate of insurance showing Customer as an additional insured, upon request. B. Customer shall maintain Commercial General Liability Insurance in the minimum amount of $500,000 per occurrence for Customer's obligations hereunder. Customer shall name Company as an additional insured under such policy and shall provide Company with a certificate of insurance showing the Company as an additional insured, upon request. 13. Deliverp/Delays. Any promised service delivery and completion dates are the best estimate possible, based upon information available. Company will have no liability for any damages, including lost profits or incidental or consequential damages, due to Work delays. If any contingency beyond the control of Company occurs that prevents xpedx from providing services hereunder on time, xpedx may allocate services among Company's customers, in the Company's sole discretion, without liability. 14. Government Contract. If Customer's purchase order contains a U.S. Government contract number and orders goods or services to be used in the performance of the work order, those clauses of the applicable U.S. government procurement regulations mandatorily required by federal statute to be included in U.S. subcontracts shall be incorporated by reference. 15. Subcontractors. Company may fulfill all or a portion of its obligations under this agreement by use of a Company selected contractor. 16. Equipment Modifications. In the event Customer (or its employee or agent) requests the modification of Equipment, including, without limitation, the modification or removal of any safety devices from the Equipment, or Customer fails to implement any changes in the Equipment recommended by Company, Customer agrees to indemnify, defend and hold xpedx harmless from any and all claims, demands, suits, costs (including reasonable attorneys' VI-3-07 XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT fees and costs of suit), and expenses incurred thereby, whether in contract, tort, or otherwise resulting from such modification. 17. Safety Devices. Company reserves the right to refuse to repair any equipment unless all safety devices are in working order. Company reserves the right to repair and connect all safety devices it deems necessary to allow the Equipment to be serviced 18. General. This Agreement may not be modified except by a written agreement signed by both parties. The invalidity of any part of these terms and conditions will not affect the validity of the remaining provisions. All claims or suits against xpedx must be made within one (1) year of the date the cause of action has accrued (regardless of when it was discovered) or be forever barred. No waiver will be effective against xpedx unless Company agrees to same in writing. xpedx's waiver of any term or condition in any instance will not be deemed to imply xpedx's waiver of any term or condition in the future. This Agreement shall be governed by and construed in accordance with the laws as adopted in the State where the Equipment being serviced is physically located, and Customer consents to personal jurisdiction in such State and County in any action arising out of this work order. Paragraph headings found herein are for convenience only and are not to be considered in interpreting any of the provisions hereof. This work order constitutes the entire agreement between the parties hereto, and supersedes all previous negotiations, commitments and agreements, with respect to the Work. This Agreement and such attachments, addendum, and amendments as accepted by Company and Customer constitute the entire understanding between the parties hereto. No amendment or waiver of the terms of this agreement may be made without being recorded in writing and signed by Company and Customer. IN WITNESS WHEREOF, the parties hereunto set their hand by their duly authorized representatives as of the day fast set forth above. WITNESS Xpedx Equipment Center 221B South 10T' Street Lemoyne, PA. 17043 WITNESS By._ Title: Pepsico 1301 Distribution Drive Carlisle, PA. 17013 By-_ Title: VI-3-07 XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT EXHIBIT A This Exhibit lists the applicable Scheduled Planned Maintenance Charges and Service Fees for the work furnished by Company to Customer under this Agreement. This Exhibit may be modified from time to time by prior written agreement of both parties and supersedes any Exhibit "A" of an earlier date: A. Scheduled Planned Maintenance Charges: 4EA. Q300 Lantech stretch wrappers ,,@r $95.00 EA. flat rate 1EA. Travel charge $75.00 Total per visit $ 455.00 (every 13 weeks) Customer is in Zone 2 and has 4 pieces of Equipment under this Agreement. B. Service Fees: (1) Services: $75.00 per hour. (ii) Travel Time: $60.00 per hour. Pepsico 1301 Distribution Drive Carlisle, PA. 17013 Dated Xpedx Equipment Center 221B South le Street Lemoyne, PA. 17043 Dated VI-3-07 All service fees are subject to change. XPEDX PLANNED MAINTE-NANCE SERVICE AGREEMENT EXHIBIT B EQUIPMENT LISTING This Exhibit lists all hardware, machines, features and elements which are subject to and included in this Equipment Maintenance Agreement. This Exhibit may be modified from time to time by prior written agreement of both parties and supersedes any Exhibit "B" of an earlier date. Make Model Serial No Loon Lantech Q300 QM013553 Carlisle, Pa. Lantech Q300 QM013681 Carlisle, Pa. Lantech Q300 QM013554 Carlisle, Pa. Lantech Q300 QM022859 Carlisle, Pa. Pepsico 1301 Distribution Drive Carlisle, PA. 17013 Dated Xpedx Equipment Center 221B South 10Th Street Lemoyne, PA. 17043 Dated V l-3-07 NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 HARTFORD ACCIDENT AND INDEMNITY INSURANCE CO., AS SUBROGEE OF MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ V. PEPSICO., INC. D/B/A PEPSI COLA NORTH AMERICA V. LANTECH.COM, LLC AND XPEDX To the herein parties: you are hereby notified to plead to the enclosed Joinder Complaint within twenty (20) days of service thereof or a default judgment may be entered against you. Attorney for Defendant ATTORNEY FOR DEFENDANT PepsiCo., Inc. d/b/a Pepsi Cola North America COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-1951 DEFENDANT PEPSICO., INC. d/b/a PEPSI COLA NORTH AMERICA JOINDER COMPLAINT AGAINST LANTECH.COM. LLC AND XPEDX Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America (hereinafter, "PepsiCo."), by and through its attorneys Naulty, Scaricamazza & McDevitt, LLC hereby files Defendant's Complaint against the Additional Defendants Lantech.com, LLC (hereinafter, "Lantech") and Xpedx, and avers as follows: 1. Plaintiff Hartford Accident and Indemnity Insurance Company (hereinafter, "Hartford") EXHIBIT a E initiated this action via Writ of Summons. Plaintiff thereafter filed a Complaint filed on or about May 28, 2010. (A true and correct copy of said Complaint has been attached hereto and marked as Exhibit "A'?. 2. Said Complaint was served on Defendant on or about June 1, 2010. 3. Defendant PepsiCo. filed its Answer and New Matter to Plaintiff's Complaint with this Honorable Court on or about November 24, 2010. (A true and correct copy of said Answer has been attached hereto and marked as Exhibit "B"). 4. This lawsuit is a subrogation action stemming from an incident occurring on March 21, 2008 when William Rodriguez, an employee of McGinley Maintenance, Inc., was allegedly injured by an electrical shock he received while stretch wrapping pallets at Defendant's facility in Carlisle, PA. (See Exhibit "A"). 5. As a result of said accident, Plaintiff, Hartford, McGinley's worker's compensation insurance carrier, has paid in excess of $30,000 in medical and indemnity benefits to Mr. Rodriguez for his alleged injuries. Hartford now seeks reimbursement from Defendant for said moneys. 6. It is believed, and therefore averred, that the accident was caused by static electricity while William Rodriguez was using a Q300 Lantech stretch wrapper. 7. Lantech.com manufactured and/or installed the stretch wrapper in question. In the aftermath of the accident on August 20, 2008, Lantech inspected the stretch wrapper and found that the ground between the roll carriage and the machine frame work was poor and the grounding points were covered with powder coat. Lantech also installed a static eliminator to assist in dissipating the static. (A true and correct copy of the Lantech Service Log has been attached hereto and marked as Exhibit "C"). 8. Prior to March 21, 2008, Defendant PepsiCo. entered into a Planned Maintenance Service Agreement with Proposed Additional Defendant Xpedx. Pursuant to said Agreement, Xpedx was to provide maintenance to certain equipment, including the stretch wrapper in question. (A true and correct copy of the Planned Maintenance Service Agreement has been attached hereto and marked as Exhibit "D") 9. Defendant avers that the incident in question was not due to the negligence of Defendant, but to the negligent manufacture, installation and/or maintenance of the stretch wrapper in question. 10. The alleged incident referred to in Plaintiff's Complaint, the facts of which Defendant denies, -- 2 -- if determined to actually have occurred, was not the result of lack of due care or negligence on the part of Defendant PepsiCo., but was due to the negligence on the part of the Additional Defendants in the manufacture, installation and/or maintenance of the stretch wrapper. 11. Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, joins the Additional Defendants, Lantech.com, LLC and Xpedx., to protect its right to contribution in the event it is determined that the Defendant and Additional Defendants are jointly and severally liable to the Plaintiff, or liable over to the Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America, the existence of any liability on the part of Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America herein being expressly denied. COUNT I - NEGLIGENCE Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendants Lantech.com LLC and Xpedx 12. Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby incorporates by reference its allegations contained in paragraphs one through eleven as if same were more fully set forth at length herein. 13. As a sole, direct and proximate result of the carelessness and/or negligence on behalf of Additional Defendants Lantech.com, LLC and Xpedx, the stretch wrapper in question was caused to malfunction and not operate properly. 14. The negligence and carelessness of Additional Defendant consisted of the following: a) Failing to properly manufacture, install, and or maintain the stretch wrapper Unit; b) Failing to properly maintain, repair, and/or service the stretch wrapper Unit to ensure that the Unit was in safe condition for intended use; C) Failing to properly repair a dangerously defective condition of the stretch wrapper Unit that they knew or reasonable should have known created and unreasonable risk of harm; d) Failing to warn or provide notice of a dangerously defective condition of the stretch wrapper Unit that created an unreasonable risk of harm; e) Failing to properly ground the stretch wrapper Unit; f) Failing to properly clean and/or maintain the grounding points of the machine; g) Failing to install and maintain a static eliminator kit or other device to guard against -- 3 -- the danger of static electricity; and h) Failing to use all due care under the circumstances. 15. In the event the allegations in Plaintiff's Complaint are proven at trial, then Additional Defendants are solely liable to the Plaintiff, jointly and severally liable with Defendant, or liable over to Defendant, in contribution and/or indemnity for the causes of action set forth in her Complaint and/or the causes of action set forth above. WHEREFORE, Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, demands that Additional Defendants, Lantech.com, LLC and Xpedx be judged solely liable to the Plaintiff for the cause of action set forth in his Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. COUNT II - PRODUCTS LIABILITY § 4020 Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America v. Additional Defendant Lantech.com. LLC 16. Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, hereby incorporates by reference its allegations contained in paragraphs one through fifteen as if same were more fully set forth at length herein. 17. At all times relevant hereto, the aforesaid dangers and/or defective product was manufactured, sold, distributed, installed and/or serviced by Additional Defendant, Lantech.com, LLC, for the use of consumers. 18. The aforesaid product left the care, custody and control of Additional Defendant, Lantech.com, LLC, Inc., and was received by Defendant in essentially the same condition as when it left the Additional Defendant who knew or should have known that it was unreasonably dangerous to the consumer or user. 19. Since this product was unreasonably dangerous and/or defective pursuant to § 402(a) of the Restatement (Second) of Torts, the Plaintiff's subrogor reportedly sustained personal injuries as set forth -- 4 -- in the Complaint. WHEREFORE, Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, demands that Additional Defendant, Lantech.com, LLC be judged solely liable to the Plaintiff for the cause of action set forth in the Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. COUNT III - BREACH OF WARRANTY Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America v. Additional Defendant Lantech.com LLC 20. Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, hereby incorporates by reference its allegations contained in paragraphs one through nineteen as if same were more fully set forth at length herein. 21. At all times relevant hereto, proposed Additional Defendant Lantech.com, LLC, warranted either expressly and/or impliedly that the product in question would be fit for its intended use. 22. Proposed Additional Defendant, Lantech.com, LLC , violated its warranty, either expressed or implied by furnishing and installing a product which was not fit for its intended purpose. 23. As a direct and proximate result of the proposed Additional Defendant's breach of warranty, Plaintiff's subrogor reported sustained personal injuries. WHEREFORE, Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, demands that Additional Defendant, Lantech.com, LLC be judged solely liable to the Plaintiff for the cause of action set forth in her Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. COUNT II - BREACH OF CONTRACT Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America v. Additional Defendant Xpedx 24. Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, hereby incorporates by reference its allegations contained in paragraphs one through twenty-three as if same were more fully set forth at __5__ length herein. 25. Prior to March 21, 2008, Defendant PepsiCo. entered into a Planned Maintenance Service Agreement with Proposed Additional Defendant Xpedx. Pursuant to said Agreement, Xpedx was to provide maintenance to certain equipment, including the stretch wrapper in question. 26. Pursuant to said Agreement, Xpedx was to provide maintenance to certain equipment, including the stretch wrapper in question. (See Exhibit "D"). 27. Further, pursuant to said Agreement Xpedx agreed to perform all work in accordance with the procedures and guidelines set forth in the Agreement. 28. Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, avers that Additional Defendant Xpedx failed to perform its obligations pursuant to the agreement. 29. As a result of Additional Defendant Xpedx's failure to perform its obligations pursuant to the agreement, Defendant PepsiCo. avers that Additional Defendant Xpedx breached that agreement and is liable to the Plaintiff, and/or original defendant, PepsiCo. for the causes of action set forth in Plaintiff's Complaint. 30. In the event that Defendant PepsiCo., Inc d/b/a Pepsi Cola North America is held liable to the Plaintiff under the terms of the agreement in question, Additional Defendant Xpedx is liable to Defendant PepsiCo., Inc d/b/a Pepsi Cola North America for full indemnification and/or contribution. 31. Defendant PepsiCo. alleges pursuant to the agreement, Additional Defendant Xpedx is solely liable to the Plaintiff for the cause of actions set forth in the Complaint, jointly and/or severally liable with Defendant PepsiCo. for the cause of actions set forth in Plaintiff's Complaint or liable over to Defendant for contribution and/or indemnity for the cause of actions set forth in Plaintiff's Complaint. 32. Defendant PepsiCo. joins the Additional Defendant Xpedx, to protect its right to contribution in the event it is determined that the Defendant and Additional Defendant Xpedxis jointly and severely liable to the Plaintiff, or liable over to Defendant PepsiCo. WHEREFORE, Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, demands that Additional Defendant Xpedx be judged solely liable to the Plaintiff for the cause of action set forth in the Complaint orjointly and/or severally liable with Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, or liable over --6-- to Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America , for contribution and/or indemnity. COUNT IV - INDEMNIFICATION/CONTRIBUTION Defendant, PepsiCo., Inc d/b/a pepsi Cola North America v. Additional Defendant Lantech.com and Xpedx 33. Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, hereby incorporates by reference its allegations contained in paragraphs one through thirty-two as if same were more fully set forth at length herein. 34. Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, avers that Additional Defendants are liable to Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America for complete indemnification and/or contribution as to the cause of action set forth in Plaintiff's Complaint. WHEREFORE, Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, demands that Additional Defendants, Lantech.com, LLC and Xpedx. be judged solely liable to the Plaintiff for the cause of action set forth in the Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc d/b/a pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America -- 7 -- VERIFICATION I, Gerard X. Smith, Esquire, attorney for the defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, hereby verify that the facts set forth in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. GERARD X. SMITH, ESQUIRE, --8-- NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 HARTFORD ACCIDENT AND INDEMNITY INSURANCE CO., AS SUBROGEE OF 1 MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ I V. PEPSICO., INC. D/B/A PEPSI COLA NORTH AMERICA V. LANTECH.COM, LLC AND XPEDX ATTORNEY FOR DEFENDANT PepsiCo., Inc d/b/a Pepsi Cola North America COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-1951 CERTIFICATE OF SERVICE I, Gerard X. Smith, Esquire, hereby certify that, on the below date, I served a copy of the foregoing Joinder Complaint on all counsel of record via U.S. Mail, First Class, postage prepaid, addressed as follows: Robert F. Horn, Esquire White & Williams, LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 BY: Date: NAULTY, SCARICAMAZZA & McDEVITT, LLC. GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America -- 9 -- FILI ED-OFFICE g g CUMPE RANVO COUNITY NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 HARTFORD ACCIDENT AND INDEMNITY INSURANCE CO., AS SUBROGEE OF MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ V. PEPSICO., INC. D/B/A PEPSI COLA NORTH AMERICA V. LANTECH.COM, LLC AND XPEDX To the herein parties: you are hereby notified to plead to the enclosed Joinder Complaint within twenty (20) days of service thereof or a default judgment may be entered against you. bid X. , e Attorney for Defendant ATTORNEY FOR DEFENDANT PepsiCo., Inc. d/b/a Pepsi Cola North America COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-1951 DEFENDANT PEPSICO., INC. d/b/a PEPSI COLA NORTH AMERICA JOINDER COMPLAINT AGAINST LANTECH.COM LLC AND XPEDX Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America (hereinafter, "PepsiCo."), by and through its attorneys Naulty, Scaricamazza & McDevitt, LLC hereby files Defendant's Complaint against the Additional Defendants Lantech.com, LLC (hereinafter, "Lantech") and Xpedx, and avers as follows: Plaintiff Hartford Accident and Indemnity Insurance Company (hereinafter, "Hartford") initiated this action via Writ of Summons. Plaintiff thereafter filed a Complaint filed on or about May 28, 2010. (A true and correct copy of said Complaint has been attached hereto and marked as Exhibit "A'1. 2. Said Complaint was served on Defendant on or about June 1, 2010. 3. Defendant PepsiCo. filed its Answer and New Matter to Plaintiff's Complaint with this Honorable Court on or about November 24, 2010. (A true and correct copy of said Answer has been attached hereto and marked as Exhibit "B") 4. This lawsuit is a subrogation action stemming from an incident occurring on March 21, 2008 when William Rodriguez, an employee of McGinley Maintenance, Inc., was allegedly injured by an electrical shock he received while stretch wrapping pallets at Defendant's facility in Carlisle, PA. (See Exhibit "A"). 5. As a result of said accident, Plaintiff, Hartford, McGinley's worker's compensation insurance carrier, has paid in excess of $30,000 in medical and indemnity benefits to Mr. Rodriguez for his alleged injuries. Hartford now seeks reimbursement from Defendant for said moneys. 6. It is believed, and therefore averred, that the accident was caused by static electricity while William Rodriguez was using a Q300 Lantech stretch wrapper. 7. Lantech.com manufactured and/or installed the stretch wrapper in question. In the aftermath of the accident on August 20, 2008, Lantech inspected the stretch wrapper and found that the ground between the roll carriage and the machine frame work was poor and the grounding points were covered with powder coat. Lantech also installed a static eliminator to assist in dissipating the static. (A true and correct copy of the Lantech Service Log has been attached hereto and marked as Exhibit "C"). 8. Prior to March 21, 2008, Defendant PepsiCo. entered into a Planned Maintenance Service Agreement with Proposed Additional Defendant Xpedx. Pursuant to said Agreement, Xpedx was to provide maintenance to certain equipment, including the stretch wrapper in question. (A true and correct copy of the Planned Maintenance Service Agreement has been attached hereto and marked as Exhibit "D") 9. Defendant avers that the incident in question was not due to the negligence of Defendant, but to the negligent manufacture, installation and/or maintenance of the stretch wrapper in question. 10. The alleged incident referred to in Plaintiff's Complaint, the facts of which Defendant denies, -- 2 -- if determined to actually have occurred, was not the result of lack of due care or negligence on the part of Defendant PepsiCo., but was due to the negligence on the part of the Additional Defendants in the manufacture, installation and/or maintenance of the stretch wrapper. 11. It is believed, and therefore averred, that proposed Additional Defendant, Lantech.com, LLC is a Kentucky business entity and/or association duly authorized to do business within the state of Pennsylvania, with a place of business located 11000 Bluegrass Parkway, Louisville, Kentucky 40299. 12. It is believed, and therefore averred, that proposed Additional Defendant, Xpedx is a business entity and/or association duly organized to do business within the state of Pennsylvania, with a place of business located at 221 B South 10th Street in Lemoyne, Pennsylvania 17043. 13. Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, joins the Additional Defendants, Lantech.com, LLC and Xpedx., to protect its right to contribution in the event it is determined that the Defendant and Additional Defendants are jointly and severally liable to the Plaintiff, or liable over to the Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America, the existence of any liability on the part of Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America herein being expressly denied. COUNT I - NEGLIGENCE Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendants Lantech com LLC and Xpedx 14. Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby incorporates by reference its allegations contained in paragraphs one through thirteen as if same were more fully set forth at length herein. 15. As a sole, direct and proximate result of the carelessness and/or negligence on behalf of Additional Defendants Lantech.com, LLC and Xpedx, the stretch wrapper in question was caused to malfunction and not operate properly. 16. The negligence and carelessness of Additional Defendants consisted of the following: a) Failing to properly manufacture, install, and or maintain the stretch wrapper Unit; b) Failing to properly maintain, repair, and/or service the stretch wrapper Unit to ensure -- 3 -- that the Unit was in safe condition for intended use; C) Failing to properly repair a dangerously defective condition of the stretch wrapper Unit that they knew or reasonable should have known created and unreasonable risk of harm; d) Failing to warn or provide notice of a dangerously defective condition of the stretch wrapper Unit that created an unreasonable risk of harm; e) Failing to properly ground the stretch wrapper Unit; f) Failing to properly clean and/or maintain the grounding points of the machine; g) Failing to install and maintain a static eliminator kit or other device to guard against the danger of static electricity; and h) Failing to use all due care under the circumstances. 17. In the event the allegations in Plaintiff's Complaint are proven at trial, then Additional Defendants are solely liable to the Plaintiff, jointly and severally liable with Defendant, or liable over to Defendant, in contribution and/or indemnity for the causes of action set forth in the Complaint and/or the causes of action set forth above. WHEREFORE, Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, demands thatAdditional Defendants, Lantech.com, LLC and Xpedx, be judged solely liable to the Plaintiff for the cause of action set forth in the Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. COUNT II - PRODUCTS LIABILITY § 4020 Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendant Lantech.com LLC 18. Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, hereby incorporates by reference its allegations contained in paragraphs one through seventeen as if same were more fully set forth at length herein. 19. At all times relevant hereto, the aforesaid dangers and/or defective product was -- 4 -- manufactured, sold, distributed, installed and/or serviced by Additional Defendant, Lantech.com, LLC, for the use of consumers. 20. The aforesaid product left the care, custody and control of Additional Defendant, Lantech.com, LLC, Inc., and was received by Defendant in essentially the same condition as when it left the Additional Defendant who knew or should have known that it was unreasonably dangerous to the consumer or user. 21. Since this product was unreasonably dangerous and/or defective pursuant to § 402(a) of the Restatement (Second) of Torts, the Plaintiff's subrogor reportedly sustained personal injuries as set forth in the Complaint. WHEREFORE, Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, demands that Additional Defendant, Lantech.com, LLC be judged solely liable to the Plaintiff for the cause of action set forth in the Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. COUNT III - BREACH OF WARRANTY Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendant Lantech.com LLC and Xpedx 22. Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby incorporates by reference its allegations contained in paragraphs one through twenty-one as if same were more fully set forth at length herein. 23. At all times relevant hereto, proposed Additional Defendant Lantech.com, LLC, warranted either expressly and/or impliedly that the product in question would be fit for its intended use. 24. Proposed Additional Defendant, Lantech.com, LLC , violated its warranty, either expressed or implied, by furnishing and installing a product which was not fit for its intended purpose. 25. At all times relevant hereto, proposed Additional Defendant Xpedx, violated its warranty, either expressed or implied, by failing to perform its duties in accordance with the Planned Maintenance -- 5 -- Service Agreement. 26. As a direct and proximate result of the proposed Additional Defendants' breaches of warranty, Plaintiff's subrogor reportedly sustained personal injuries. WHEREFORE, Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, demands that Additional Defendants, Lantech.com, LLC and Xpedx be judged solely liable to the Plaintiff for the cause of action set forth in the Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. COUNT IV - BREACH OF CONTRACT Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendant Xpedx 27. Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby incorporates by reference its allegations contained in paragraphs one through twenty-six as if same were more fully set forth at length herein. 28. Prior to March 21, 2008, Defendant PepsiCo. entered into a Planned Maintenance Service Agreement with Proposed Additional Defendant Xpedx. Pursuant to said Agreement, Xpedx was to provide maintenance to certain equipment, including the stretch wrapper in question. 29. Pursuant to said Agreement, Xpedx was to provide maintenance to certain equipment, including the stretch wrapper in question. (See Exhibit "D'J. 30. Further, pursuant to said Agreement, Xpedx agreed to perform all work in accordance with the procedures and guidelines set forth in the Agreement. 31. Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, avers that Additional Defendant Xpedx failed to perform its obligations pursuant to the agreement. 32. As a result of Additional Defendant Xpedx's failure to perform its obligations pursuant to the agreement, Defendant PepsiCo. avers that Additional Defendant Xpedx breached that agreement and is liable to the Plaintiff, and/or original defendant, PepsiCo. for the causes of action set forth in Plaintiff's --6-- Complaint. 33. In the event that Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America is held liable to the Plaintiff under the terms of the agreement in question, Additional Defendant Xpedx is liable to Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America for full indemnification and/or contribution. 34. Defendant PepsiCo. alleges pursuant to the agreement, Additional Defendant Xpedx is solely liable to the Plaintiff for the cause of actions set forth in the Complaint, jointly and/or severally liable with Defendant PepsiCo. for the cause of actions set forth in Plaintiff's Complaint or liable over to Defendant for contribution and/or indemnity for the cause of actions set forth in Plaintiff's Complaint. 35. Defendant PepsiCo. joins the Additional Defendant Xpedx, to protect its right to contribution in the event it is determined that the Defendant and Additional Defendant Xpedx is jointly and severely liable to the Plaintiff, or liable over to Defendant PepsiCo. WHEREFORE, Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, demands that Additional Defendant Xpedx be judged solely liable to the Plaintiff for the cause of action set forth in the Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, or liable over to Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America , for contribution and/or indemnity. COUNT V - INDEMNIFICATION/CONTRIBUTION Defendant, PepsiCo., Inc. d/b/a pepsi Cola North America v. Additional Defendant Lantech com and Xpedx 36. Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby incorporates by reference its allegations contained in paragraphs one through thirty-five as if same were more fully set forth at length herein. 37. Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, avers that Additional Defendants are liable to Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America for complete indemnification and/or contribution as to the cause of action set forth in Plaintiff's Complaint. WHEREFORE, Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, demands that Additional Defendants, Lantech.com, LLC and Xpedx. be judged solely liable to the Plaintiff for the cause of action -- 7 -- set forth in the Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc. d/b/a pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: Zy C-- GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America -- 8 -- VERIFICATION I, Gerard X. Smith, Esquire, attorney for the defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby verify that the facts set forth in the foregoing Joinder Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Zz GERARD X. SMITH, ESQUIRE, -- 9 -- NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 HARTFORD ACCIDENT AND INDEMNITY INSURANCE CO., AS SUBROGEE OF MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ I V. PEPSICO., INC. D/B/A PEPSI COLA NORTH AMERICA V. LANTECH.COM, LLC AND XPEDX ATTORNEY FOR DEFENDANT PepsiCo., Inc d/b/a Pepsi Cola North America COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-1951 CERTIFICATE OF SERVICE I, Gerard X. Smith, Esquire, hereby certify that, on the below date, I served a copy of the foregoing Joinder Complaint on all counsel of record via U.S. Mail, First Class, postage prepaid, addressed as follows: Robert F. Horn, Esquire White & Williams, LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: Z? L-? GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America Date: 3 .3eD . I -- 10 -- Robert F_ Horn, dire: White and Williams, LLP 1650 Market. Street: One. LiberlyTjacBite 18Q0 Philad lphia, "PA f9103 215464-7112 hornr@vOfiteauidwilliams.com HARM" ACCIDENT ANI) INDE NITY II ITI AI?+?I C( 'Al a9 su )r6gee of l'YIC+G i T1i.E '' "MOT-MA eg, INC. 20&or `V4gUAA I A? Z -Hartford Pfau Hartford CT 061.15 Plaintiff, VS.: COURT: OF C(7M1`vIHi1 PLEAS CUMB? COUNTY RP-Y'1 1 L DEMANDED CASE NO,: 2010-01951 ARBITRATION CASE PEPSICO, INC. 150 Fayareville $t, Box 1011 Raleigh 9C 21601 Defendant. IY0'O DID YO b RAVE $P t: U . XTI GOC}R f o ?7r CAB' $si?st tlta dfarfix t-forth ;n:.ttu•toabwip u ,must telcc acifop .ovittun twenty 20 days =fir this C'o :fitco 3cPV?1. Y %pa f vs ,6 _ ? by attoCnpy st)id #ilipg in writii gwjih [ltc Couit. our. h ztttrifig.?•wr}tteo oppFar cc p twl or that ity©u fail to-do ao the rase,ma y or taetintis ?o the cl5t Y1 a c tiYi titt Atl tht t firth- airtsc dot! You ate "Med further notice for anmon atilnefittay bexcnet} nst you by tha.teiurt without Y. eycdtncd ita:tlie Curt pl...... and otf? r aaiwj6r etief Ye0isW {,y the Plsintilf'. You may lose Thoncy or property or other fou importarnto you. YOU SHOULD TAKE THIS T, 'SX'.'?r } Y +1.94 V t1T ONCE 1F Xfl11 p[J NOT;HAIfE A LA WYER OR . CANNOT AFFORD ONE GO TO OR`TEL1;l'hONl3 f HE {JI SET > MAY GET LEGAL HELP. OlYT1"$'EL01V 16:fi1ND OUT W?IERE YOU CUMBEA ..ANfl ?tirr sAR r ssocrA°t 1oN ?2 s bE0 1 STREET CAWSLt A 17113 B00,00148 6243287v.1 I EI-A Robert F.'Horn,:.&quire White and Williams, LLP 1650 Market-Street ety'"Place, Suite 1SO0 Philadelphia, PA 19103 215',864-7132 homr@whiteaiidwilliams.com ILARTFORD ACCIDXj?T,g, IN U?ANCiE CO COURT OF GQ TV 04W ?PL1rAs MCG'-NY,'stfi? bf C "Wk , 40 » CF; WC.And/,or WILLTAiyi Itbb??Z` JU1t:?T?AI. D?1?1pb,: Hartfod Plaza Hartford CT 061.15 CASE NO.: 2010-01951. Plaintiff, vs. PRPSICO, INC. AR>3ITRA`TIUN CASH 150 Fayetteville St, Box 1'011 Raleigh NC 27601 Defendant, CMtLAj T Plaintiff, Hartford Accident and Indemnity Insurance Company a/s/o McGinley Maintenances Inc: and/or William Rodriguez, by and throughts attorneys, Wliute LLP; hereby alleges and states as.follows: and Williams 1 • Plaintiff Hartford Accident and Indemnity Insurance Company a/s/o McGinle Maintenances Inc> Y > and/or William Rodriguez (hereinafter "Hartford") is a Connecticut corporation and a licensed insurance provider in the State of Connecticut with a Principal place of 'busin s locaW at Harif4rd Playa, HartfaId, Connecticut. At all relevant times hereto,, Hartford was=authwjzcd to issuepoliei°es of insurance in the Commonwealth of`Pennsylvana. 6241287v.l 1 2 McGinley Maintenance; Inc: (hereafter "Mc inlet'") is a PennsYlva corporation with its principal place of business` located In 1lelle Vernon, Pennsylvania, 3. Upon information and"belief, befendtU t PepsiCo, Inc. (hereinafter "PepsiCo,,) is -Pa tiOn Who owned and operated a .p., Sig d distribution facility in Cumberland County located at 1301 Distribution Drive, Carlisle, Penns ,.ylvana Where the subject accident occurred. `l- At all times relevant and material hereto, PepsiCo was in, the business of znanufactttring, assembling, distributing, selling, attd Supplying,; inter alia, beverage and food products. ?1<tTB?TC?1<gN A???1?1W $ This Court has jurisdiction over the Defendant and the subject matter of this action based upon the following substantial contacts with the Commonwealth of Pennsylvania: (a) The Defendant has conducted and continues to conduct substantial business in Pennsylvania on a regwar basis; and (b) The incident giving rise to this action occurred in Pennsylvania. ,6. Vcnue is proper in Cumberland County' because Defendant regularly conduc is business in Cumberland County; and the incident giving. rise to this action occurred i Cumberland County; in FACTUAL BA !• / Prier to March 21, 2008, Defendant PepsiCo con tracted McGinley to perform paclcagtng' and shipping services at one of PepsiCo's packaging facilities located at 1301 Distribution Drive, Carlisle Pennsylvania 17013 (hereinafter "Subject Property"), 8. At all tiiuea relevant, hereto, William Rodriguez was eml?toYed by IvlcGinle Maintenance and worked at the Subject Pro Y Perty performing packaging servicses including 62,43287m 2 shrink wrapping pallets thn nsirig an eleetnc Arink wrap machine (hereinafter "subject machine'), owned and mairitained,by PepsiCo. 91 On MArch 21, ON, Mr. Rodriguez was. wrappjng a pallet using the subject machine when he was he jolted by a severe electrical shock from the subject machine. The electrical shack caused Mr RO guez,to;fall to ground where he struck leis head. 10. The injuries sustained by Mr. Rodriguez was the direct result of the Pespico's negligent maintenance of the subject machine and negligent failure to warn' its employees, agents, representatives; =d subcontractors of the dangerous defects -of the subject machine. 11, At all times relevant hereto, Hartford workers' compensation insurance coverage to McGinley, 12• 'Pursuant to the terms of the policy, Hartford paid in excess of $3:0,557.70 in medical and indemnity benefits to Mr. Rodriguez for injuries he sustained from the electric. shock and resultingfall_ 13. By virtue of the payments made to Mr. Rodriguez in accordance with the terms and conditions of the policy, Hartford is' now subrogated to the rights of its insured against;tlje, party or;parties Tesponsible for Mr. Rodriguez's injuries. C{tI7VIE O9-- NEGI IGENCE Plai'otiffv. Pepiwo Inc, 14. Plaintiff incorporates the allegations contained in paragraphs I through 13 as if set forth at length. 15. PepsiCo owed a duty of care to Mr. Rodriguez to properly maintain, repair and/or service its equipment; to- ensure that such equipment is in a condition that was safe for its intended and. use by its business invitees, employees, agents, subcon tr?ctaxstr representatives- 6243287v.1 3 16. PepsiCo also owed a dray of care to W AM 69146. to warn or provide notice to its btginESS invitees, emploYees a gents,, subcontractors and/or representatives of.dan$erous cbnMofis of its equipment-or to prevent'vse of such dangerous equipment° by its empY lii ees . _, agents subcontractors and/or representatives. 17. PepsiCo breached its duty Of ire owed to Mr. Rodriguezin one or more of the follow ng ways: a• Failing to, pra rly maintain, repair, and/or service the Unit to ensure that the Vint was in safe condition for intended use by its employees, agents, subeontraotors and/or representatives, b. Failing to P?p*rly'repaira dangerously defeetive.conditiori -of the [Itit that 4t';ltttew or--re nablY slim have -known created an uruOsoraable risk of harm to its employees, agents, subcontt*titwirs and/or representatives; e` Failing to warn or provide notice of a dangerously defective condition o'f the t_tnit that created an unreasonable risk ofharn to its°employees; agents, subcontractors and/or represenntatives; d. Failing to use due care under the circumstances. 18 PepsiCo's negligence was a direct and proximate cause of Rodrigue2's inJtiftes, and as a result of Mr. Rodriguez's injury, Hartford paid workers' cotxipensation.benefits under $50,000.00_ WRER FOItE, Plaintiff demands judgment against Defendant PepsiCo for damages in .an amount under $505000:00 'together with interest, attorney's fees, costs of suit; and such ntlaer relief the :Court may deem, appropriate, 6243287x.1 COUNT TWO - xf '?' UNITY Plaintiff v, PepsiCo; lfj3G 19.. 'Plaintiff incorporates the allegations °coi d4idd in the preceding paragraphs as if set forth at length. 20. PepsiCo owned, designed.as a sopiNstirated user, modified, installed, maintained, distributed, sold, and/or manufactured the subject machine with a dangerous defect that caused severe electric shock to individual(s). 21. PepsiCo had custody and-.control of the subject machine which had inadequate safety equiptn t to prevent shock *and/or lack of a warning of the damages to users of the subject` machine. 22. The subject machine's dangerous defective caused the Mr. Rodriguez to be sho d for which"Pepsico:is strictly liable pursuant to sections 402(A) and 402(1B) of the appB aOJe; Restatement of Torts in: a-) designing, installing, manufactufing; selling and t}i fir buting,the subject machine that defendant knew or reasonably A' ul'd have known subjected plaintiff to an unreasona`Eile:risk of injury or iiijujiy; b:) designing, installing, manufacturing, selling and distributing a defective subject machine when defendant - enew or should have known that said subject machine would pose a threat of bodily harm or injury to users retying on the security of the subject machine; c:) designing, installing, manufacturing, selling and distri buting the subject machine which when used for its intended purpose *as likely to pose a threat of bodily harm or injury to users relying on-the security of the subject -machine; d:) misrepresenting the uses and attributes of the subject machine upon which misrepresentations plaintiff relied to hisdetriment; e) felling, installing, and distributing the su ject machine with instructiorns and warrdngs that defendant hew or re4onalily should have known were improper, inadequate and-that subjected plaint if to an unreasonable risk of injuryor injury; 6243287v;t f.) desion'g, instali"ing, manufacturing, selling and distribtttirng the sul*ct machine in a dan$eroas ?j!?y; ly defecti' a condition that posed an unreasonable risk of injury or g-) de?i?g; i h? i factiu selling and distiiblt rig the subj t machine with lnadequnte epMP(W0nt parts which defendant knew or should have known subjected Plaintiff to an unreasonablexisk of injury or<ir6ury; h) designing, rriantifacturing, selling:, installing and distributing the subject machine that- was not safe,for all reasonably foreseeable uses;' and 0 fkiln?g'AP Pr+ t'ly guard the user from bodily injury or injury resulting f om a. defect ofdie sul ject machine. 24.. The-subject machine could have been designed, installed and manufactured with better grounding on the safety devices preventing the shocking of Mr. Rodriguez. 25: As a direct and proxfn-xate<result of dangerous defect of the subject machine for which defendant is strictly liable pursuant to Section 402(A) and 402(B) 'of :the applicable Restatement of Torts, Mr. Rodriguez sustained bodily injury. As a result of Mr. Rodriguez,s injury, Hartford paid woz-kers' compensation benefits in, an amount under $50,000:00, WHEREFORE, Plaintiff demands judgment against DefendantPepsiCo for damages in the amount under $50,000.00`together with interest, attorney's fees, costs of suit, and such other relief the court may deem appropriate. W JUTE ANT WILLIAMS LLP BY: L I Robert F. Horn, 8squire T.D. No. PA 78036 1650 "Market Street One Liberty Place, Suite 1$00 Philadelphia, PA, 19103 Telephone: (215) $64-7132 Facsimilre: (2T5) 7894672 horn a)whiteandwillis.com Attorneys for Plaint May-27, 20"10 ` 6 6243297v.1 1 verifylha# the sW erxients_made iri ERI iCATION Ws Complaint are.true attd,tMee# to the best of my knowledge and b6 lief 1. t{ ?'that ' alse statezrl ntsmacley} t. .-gh' N Oct to penalties of 18 PA. C,S., Subs+ #t n"K reiating;to unswom falsification to=ittithorit es. Date: May 27, 20'10 Robert F1=1orn 0243287v. I C1ERTIFICATC 4I+` 993 VTC`E 1, Robert F: H©rn; h rcby certify that, true_and;eorrrect copy of the-foregoing".Pla#nt 's Complaint was served via regillar>roail 4n the, 27th day: of May, 2010, on the following counsel of reoord: PEP, SICO, INC. 150 VA 1011 Raleigh NC 2-7601 (;bF. noire, Esquire Darted: May 27, 2010 b243287v.I 4 FILED-OFFICC OF THE PROTHONOTARY y)C(-L- /t4 ZOID NOV 24 PM.1: S 1 CUMBERLAND COUNTY PENNSYLVANIA NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard One Penn Center, Suite 750 Philadelphia, PA 19103 (215) 568-5116 To the herein parties you are hereby notified to plead to the enclosed Answer and New Matter within twenty (20) days of service thereof or a default judgment may be entered against you. CtC4"X 5"a, ?iujr.;no Attorney for Defendant ATTORNEY FOR DEFENDANT HARTFORD ACCIDENT AND INDEMNITY 1 COURT OF COMMON PLEAS INSURANCE CO., as subrogee of MCGINLEY CUMBERLAND COUNTY MAINTENANCE, INC. and/or WILLIAM 1 RODRIGUEZ I NO. 10-1951 VS 1 I PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA , 1. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 1 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 2. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 2 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 3. It is admitted that Answering Defendant did lease a distribution facility in Cumberland County at 1301 Distribution Drive, Carlisle, PA. The remaining allegations contained in Paragraph 3 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 4. Denied. The allegations contained in Paragraph 4 of Plaintiffs' Comp EXHIBIT -onclusions of law to which no further response is required. 5. Jurisdiction is acknowledged. 6. Venue is acknowledged. 7. Denied. The allegations contained in Paragraph 7 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. 8. Denied. The allegations contained in Paragraph 8 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, and to the extent that a response is required, it is specifically denied that Answering Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, owned or maintained the "subject machine" in question. As to the remaining averments contained in Paragraph 8 of Plaintiffs' Complaint, Answering Defendant is without sufficient knowledge to form a belief as to the truth or accuracy of same and, therefore, these averments are denied and strict proof thereof is demanded. 9. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 9 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 10. Denied. The allegations contained in Paragraph 10 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant acted negligently and/or that Answering Defendant maintained the machine in question. The remaining allegations contained in Paragraph 10 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 11. Upon information and belief admitted. 12. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 12 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 13. Denied. The allegations contained in Paragraph 13 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. COUNT ONE 14. Answering Defendant hereby incorporates by reference its answers to Paragraphs 1 through 13 of Plaintiffs' Complaint as if same were fully set forth at length herein. -- 2 -- 15. Denied. The allegations contained in Paragraph 15 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, the equipment in question was neither owned, maintained, repaired or serviced by Answering Defendant. The remaining allegations contained in Paragraph 15 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 16. Denied. The allegations contained in Paragraph 16 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant had notice or knowledge of any "dangerous or defective condition" of the equipment in question. The equipment in question was serviced and maintained by independent third parties and not by Answering Defendant. 17. Denied. The allegations contained in Paragraph 17 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant breached any duty of care owed to Mr. Rodriguez. Moreover, it is denied that Answering Defendant: a. failed to properly maintain, repair and/or service the Unit to ensure that the Unit was in safe condition for intended use by its employees, agents, subcontractors and/or representatives; b. failed to properly repair a dangerously defective condition of the Unit that it knew or reasonably should have known created an unreasonable risk of harm to its employees, agents, subcontractors and/or representatives; C. failed to warn or provide notice of a dangerously defective condition of the Unit that created an unreasonable risk of harm to its employees, agents, subcontractors and/or representatives; d. failed to use due care under the circumstances. On the contrary, at all times material hereto, Answering Defendant acted with due and proper care under the circumstances. 18. Denied. The allegations contained in Paragraph 18 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant acted negligently and/or that said negligence was a direct and proximate cause of the alleged injuries or damages of William Rodriguez. -- 3 -- COUNT TWO 19. Answering Defendant hereby incorporates by reference its answers to Paragraphs 1 through 18 of Plaintiffs' Complaint as if same were fully set forth at length herein. 20. Denied. The allegations contained in Paragraph 20 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant either owned or designed as a sophisticated user, modified, installed, maintained, distributed, sold or manufactured the subject machine. It is denied that Answering Defendant had any notice or knowledge of any alleged defect on the machine at any time prior to Plaintiff's accident. 21. Denied. The allegations contained in Paragraph 21 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant, while acknowledging that the machine was at its premises, denies that it had "custody and control" as alleged by Plaintiffs. Further, it is denied that Answering Defendant was aware of any "inadequate safety equipment" for the subject machine. 22. Denied. The allegations contained in Paragraph 22 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that there existed any dangerous or defective machine of which Answering Defendant was knowledgeable. It is further denied that Answering Defendant is "strictly liable" to the Plaintiffs. Furthermore, it is denied that Answering Defendant is liable in: a.) designing, installing, manufacturing, selling or distributing the subject machine that defendant knew or reasonably should have known subjected plaintiff to an unreasonable risk of injury or injury; b.) designing, installing, manufacturing, selling or distributing a defective subject machine when defendant knew or should have known that said subject machine would pose a threat of bodily harm or injury to users relying on the security of the subject machine; C.) designing, installing, manufacturing, selling or distributing the subject machine which when used for its intended purpose was likely to pose a threat of bodily harm or injury to users relying on the security of the subject machine; d.) misrepresenting the uses and attributes of the subject machine upon which misrepresentations plaintiff relied to his detriment; -- 4 -- e.) selling, installing or distributing the subject machine with instructions and warnings that defendant knew or reasonably should have known were improper, inadequate and that subjected plaintiff to an unreasonable risk of injury or injury; f.) designing, installing, manufacturing, selling or distributing the subject machine in a dangerously defective condition that posed an unreasonable risk of injury or injury; g.) designing, installing, manufacturing, selling or distributing the subject machine with inadequate component parts which defendant knew or should have known subjected plaintiff to an unreasonable risk of injury or injury; h.) designing, manufacturing, selling, installing and distributing the subject machine that was not safe for all reasonably foreseeable uses; and i.) failing to properly guard the user from bodily injury or injury resulting from a defect of the subject machine. On the contrary, at all times material hereto, Answering Defendant acted with due and proper care under the circumstances. 24. Denied. The allegations contained in Paragraph 24 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, to the extent that a response is required, Answering Defendant is without sufficient knowledge to form a belief as to the truth or accuracy of same and, therefore, these averments are denied and strict proof thereof is demanded. 25. Denied. The allegations contained in Paragraph 25 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant was aware of any dangerous or defective condition of the subject machine and/or that is directly and/or proximately liable to the Plaintiffs due to same. WHEREFORE, Answering Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby demands judgment in its favor and against Plaintiffs, Hartford Accident and Indemnity Insurance Co., as subrogee of McGinley Maintenance, Inc. and/or William Rodriguez, together with costs of suit including reasonable attorney's fees if allowed by law. -- 5 -- NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard One Penn Center, Suite 750 Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR DEFENDANT HARTFORD ACCIDENT AND INDEMNITY ; COURT OF COMMON PLEAS INSURANCE CO., as subrogee of MCGINLEY CUMBERLAND COUNTY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ NO. 10-1951 VS PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA CERTIFICATE OF SERVICE i, Gerard X. Smith, Esquire, hereby certify that I served a copy of the foregoing Answer and New Matter to Plaintiffs' Complaint via U.S. Mail, First Class, postage prepaid, addressed as follows: Robert F. Horn, Esquire White & Williams, LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 NAULTY, SCARICAMAZZA & McDEVITT, LLC. A- GERARD X. SMITH, ESQUIRE Attorney for Defendant -- 8 -- Lazk ecfi ...C 40M sevem?Mr„ "W Cae.,ewr.0 a" ftawha Cam: Technical Services Group Service / Start-Up Log 11000 Bluegrass Parkway l_ookville, KY 40298 (502) 267-42W (800) 868-0322 "achl a User: PEP'S= Contact Name: PEPSICO Address: 1301 DISiRl RnWN DRIVE CARLISLE, PA 17013 USA Phone Number Email: Bill To: PEPSIW Cuntma Nsam- SERVICE Addrea: 1301 DLSTRIb1 rrION DRM CARLISLE, PA 17013 USA Purchase Order* WARRANTY Phone Number Emall: Serial NumberQM022aq Nodal: Q3W wpoae or V ft Static Issues ArlOW&- Wednesday 8/20/2008 : Arrived on site and met with Maree Sommers about the static issues. After running a few test loads we determined that the issues were coming from the rollers with in the roll carriage its self. We found that the ground between the roll carriage and the machine frame worm was poor and that some of the grounding points were covered with the powder coat and needed to be cleaned to assure a good ground. We also Installed a static eliminator kit to assist in dissipating the static. Machine runs fine and has 1410 cycles on it at this time. J O Co ?O O O O N O T- 00 O O N CO O O 0 0 Co 00 et 0 N Co O CO O O N P1aM Hours 2008 Rev. t?/D7g7 Follow Up: '1111:? ?Servioe / - Up ComPiebe Field Ergiriewa Signatrre Field Engineer's Name Cust~s Signaprre Cusbonser's Name cram tnwertWDoug Clarke Murree Sornnrrrs 00 O 0 N o) N O T- € G XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT Customer Name & Mailing Address: Pepsico 1301 Distribution Drive Carlisle, PA. 17013 Ship to Address: Pepsico 1301 Distribution Drive Carlisle, PA. 17013 Contact Name: Matt Surkosky Tide: Telephone: (717) 960-4503 Email address: NA Initial Agreement (Term) : February 120115 to February 12009 XPEDX - EQUIPMENT SERVICE DEPARTMENT, hereinafter Company, agrees to provide (1) Service and (2) Schedule&Plarmed Maintenance support to the above named customer, hereinafter Customer, on the terms set forth herein. This Agreement shall cover the equipment listed on Exhibit B which Exhibit may be amended by mutual written agreement. 1. Acceptance: Customer agrees that Company shall have fifteen business (15) days from the date of its execution of this Agreement to inspect the Equipment (as listed on bit B to determine whether the, Equipment is in proper operating condition and free of any defects that would require prior repair, replacement, or adjustment of parts or assemblies. ff Company does not find the Equipment to be in good working order, Company shall notify Customer of that fact. Customer shall then have ten business (10) days to notify Company as to whether Customer desires Company to repair the Equipment in order that such Equipment may be covered by this Agreement. Such repair will be billed to Customer at the Service Fees rate in Exhibit A. Y Customer does not desire Company to repair the Equipment, or if Customer fails to notify Company within the ten business (10) day period, this Agreement shall be of no force or effect with respect to such piece of Equipment. 2. Definitions: A. "Service" is defined as cleaning, adjusting, lubricating, repairing, or replacing parts and components of the Equipment during the Term, other than labor listed on the Planned Maintenance Schedules attached hereto for each piece of Equipment and which is performed in connection with a pre-scheduled Planned Maintenance Appointment. 01b VI-3-07 EXH18ff 1 XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT B. "Planned Maintenance" is defined as those specific preventative maintenance tasks listed on the Planned Maintenance Schedules attached hereto for each piece of Equipment and which is performed in connection with a pre-scheduled Planned Maintenance Appointment. Planned Maintenance does not include the repair or replacement of any systems, parts and components of the Equipment, including any perishable or expendable parts and supplies (such as light bulbs, fuses, or electrical components. 3. Term: The initial term of this agreement is as set forth on the front page of this Agreement. If no date is set forth, the Tenn shall commence as of the date xpedx executes this Agreement and the satisfaction of the conditions in Section 2 hereof. This Agreement may be continued for successive one year periods at the Company's then prevailing rates upon mutual written agreement of each the parties hereto. 4. Service Availability: Service calls may be placed by calling the Dispatch Center at (800) 358-3428. Company will provide Service under the terns of this Agreement, as indicated above Monday through Friday, 8:00am to 5:00pm, excluding any locally observed Holidays. 5. Charges, Taxes and Invoices: Customer may pay a flat periodic fee for the Planned Maintenance portion of this Agreement, or on a "pay as performed" basis. All other Services shall be billed on an hourly basis in each case in the amounts set forth on Exhibit A. Paris shall be billed as a separate invoice. All invoices for Planned Maintenance must be paid within the applicable payment terns and conditions. All other invoices are due and payable, in full, 30 days from date of invoice. Applicable taxes shall be added to any charges under this Agreement. If Service is rendered, at the Customer's request, during periods other than the Company's normal work day or hours, all Services shall be billed at the Company's then current prevailing overtime rates. If Customer fails to pay, when due, any invoice between Company and Customer, Company shall have the right to withhold service or terminate this Agreement Customer will be charged and agrees to pay a late fee of 1.5% per month on all overdue payments. Customer shall pay all costs involved in collecting any outstanding money due Company, including reasonable attorneys' fees. 6. Exclusions: Planned Maintenance provided under this Agreement does not include repair of damage, increase in service time, or provision of replacement parts caused by or resulting from a) use of Equipment in a manner not recommended by Original Equipment Manufacturer (OEM); b) failure to continually provide a suitable working environment, including but not limited to, adequate and consistent electrical power, air conditioning or humidity control; c) the improper use, management, or supervision of covered Equipment, including without limitation; the use of supplies and perishable/expendable parts and components not recommended by the OEM; d) accident and/or natural disaster, including without limitation, limited to, fire, flood, water, wind, or lightning, e) electrical alterations, VI-3-07 XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT attachments or other devices not covered by this Agreement; or f) any damage or increase in Service time caused by excessive electrostatic discharge, improper grounding, improper power line protection, or environmental conditions not conducive to the proper operation of the Equipment. 7. Independent Contractor Relationship: The Company will perform all services under this Agreement as an independent contractor. While the Customer is interested in the outcome ofthe services provided under this Agreement, the conduct and control of the work will lie solely with the Company. 8. Equipment Location: All services under this Agreement will be provided on the Equipment only at the locations shown on Exhibit B. The Customer agrees to promptly notify Company of any change in Equipment location and abide by Company's determination with respect to changes in charges necessitated by the change in location. The Customer shall keep the area around the Equipment, as well as all entrances and exits, safe and free from hazards. The Customer shall maintain said area to at least the standards established by applicable building and occupancy codes and OSHA regulations. 9. Warranty: Company warrants that all labor shall be performed in a workmanlike manner. The Company's labor is warranted for twenty (20) calendar days from the date of service. All parts are subject to the applicable manufacturer's standard warranty. This warranty excludes all claims arising from any casualty, abuse or neglect of the Equipment. Other than as set forth herein, the Company disclaims any express and implied warranty, including but not limited to, warranties of merchantability, fitness for a particular purpose, or non-infringement, or warranties arising from course of dealing or usage of trade. 10. Limitation of Liability: Company shall not be held liable in the event that the Company's performance is limited, delayed or prevented in whole or in part, directly or indirectly, by any factor or cause whatsoever, beyond the Company's control.. CUSTOMER AGREES THAT IN NO EVENT SHALL COMPANY BE HELD LIABLE FOR BREACH OF THIS AGREEMENT OR FOR ANY ALLEGED NEGLIGENCE OF COMPANY OR ITS E-WLOYEES, IN AN AMOUNT IN EXCESS OF THE AMOUNT PAID TO COMPANY FOR THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE FOR THE UNIT OF EQUIPMENT INVOLVED. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF DATA, LOSS OF PROFIT, OR LIABILITY TO THIRD PARTIES, HOWEVER CAUSED. 11. Indemnification: A. Company agrees to indemnify and hold Customer and its employees, officers and directors harmless against any and all claims, liabilities, suits, judgments, costs and expenses, VI-3-07 XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT including reasonable attorney fees, arising out of or resulting from Company's gross negligence or willful misconduct. B. Customer agrees to indemnify and hold Company harmless against any and all claims, liabilities, suits, judgments, costs and expense, Including arising out of or resulting from Customer's reasonable attorney fees, gross negligence or wiDfiil misconduct including without limitation, the Customer's or its employee's or agent's operation of any equipment without all safety devices in place and fully operational. 12. Insurance: A. Company shall maintain Commercial General Liability Insurance in the amount of $1,000,000 per occurrence for occurrence arising out of the Company's products and operations hereunder. Company shall. name Customer as an additional insured under such policy and shall provide customer with a certificate of insurance showing Customer as an additional insured, upon request. B. Customer shall maintain Commercial General Liability insurance in the minimum amount of $500,000 per occurrence for Customer's obligations hereunder. Customer shall name Company as an additional insured under such policy and shall provide Company with a certificate of insurance showing the Company as an additional insured, upon request. 13. Deliverv/Delays. Any promised service delivery and completion dates are the best estimate possible, based upon information available. Company will have no liability for any damages, including lost profits or incidental or consequential damages, due to Work delays. If any contingency beyond the control of Company occurs that prevents xpedx from providing services hereunder on time, xpedx may allocate services among Company's customers, in the Company's sole discretion, without liability. 14. Government Contract. If Customer's purchase order contains a U. S. Government contract number and orders goods or services to be used in the performance of the work order, those clauses of the applicable U.S. government procurement regulations mandatorily required by federal statute to be included in U.S. subcontracts shall be incorporated by reference. 15. Subcontractors. Company may fulfill all or a portion of its obligations under this agreement by use of a Company selected contractor. 16. Equipment Modifications. In the event Customer. (or its employee or agent) requests the modification of Equipment, including, without limitation, the modification or removal of any safety devices from the Equipment, or Customer fails to implement any changes in the Equipment recommended by Company, Customer agrees xpedx harmless from any and all claims, demands, suits, costs (inc ud g reasonable alto eys' VI-3-07 XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT fees and costs of suit), and expenses incurred thereby, whether in contract, tort, or otherwise resulting from such modification. 17. Safety Devices. Company reserves the right to refuse to repair any equipment unless all safety devices are in working order. Company reserves the right to repair and connect all safety devices it deems necessary to allow the Equipment to be serviced 18. General. This Agreement may not be modified except by a written agreement signed by both parties. The invalidity of any part of these terms and conditions will not affect the validity of the remaining provisions. All claims or suits against xpedx must be made within one (1) year of the date the cause of action has accrued (regardless of when it was discovered) or be forever barred. No waiver will be effective against xpedx unless Company agrees to same in writing. xpedx's waiver of any term or condition in any instance will not be deemed to imply xpedx's waiver of any tern or condition inthe. future. This Agreement shall be governed by and construed in accordance with.the laws as adopted in the State where the Equipment being serviced is physically located, and Customer consents to personal jurisdiction in such State and County in any action arising out of this work order. Paragraph headings found herein are for convenience only and are. not to be considered,in interpreting any of the provisions hereof. This work order constitutes the entire agreement between the parties hereto, and supersedes all previous negotiations, commitments and agreements, with respect to the Work. This Agreement and such attachments, addendum, and amendments as accepted by Company and Customer constitute the entire understanding between the parties hereto. No amendment or waiver of the terns of this agreement may be made without being recorded in writing and signed by Company and Customer. IN WITNESS WHEREOF, the parties hereunto set their hand by their duly authorized representatives as of the day first set forth above. WITNESS Xpedx Equipment Center 221B South 10T' Street Lemoyne, PA. 17043 WITNESS By._ Title: Pepsico 1301 Distribution Drive Carlisle, PA. 17013 By._ Title: V1-3-07 XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT EXHIBIT A This Exhibit lists the applicable Scheduled Planned Maintenance Charges and Service Fees for the work furnished by Company to Customer under this Agreement. This Exhibit may be modified from time to time by prior written agreement of both parties and supersedes any Exhibit "A" of an earlier date: A. Scheduled Planned Maintenance Charges: 4EA. Q300 Lantech stretch wrappers @ $95.00 EA. flat rate 1EA. Travel charge $75.00 Total per visit $ 455.00 (every 13 weeks) Customer is in Zone 2 and has 4 pieces of Equipment under this Agreement B. Service Fees: (1) Services: $75.00 per hour. (ii) Travel Time: $60.00 per hour. PepsiCo 1301 Distribution Drive Carlisle, PA. 17013 Dated Xpedx Equipment center 221B South 10Th Street Lemoyne, PA. 17043 Dated VI-3-07 All service fees are subject to change. XPEDX PLANNED MAINTENANCE SERVICE AGREEMENT EXHIBIT B EQUIPMENT LISTING This. Exhibit lists all hardware, machines, features and elements which are subject to and included in this Equipment Maintenance Agreement. This Exhibit may be modified from time to time by prior written agreement of both parties and supersedes any Exhibit "B" of an earlier date. Make Model Serial Location Lantech Q300 QM01355-3 Carlisle, Pa. Lantech Q300 QM013681 Carlisle, Pa. Lantech Q300 QM013554 Carlisle, Pa. Lantech Q300 QM022859 Carlisle, Pa. PepsiCo 1301 Distribution Drive Carlisle, PA. 17013 Dated Xpedx Equipment Center 221B South 10Th Street Lemoyne, PA. 17043 Dated V1-3-07 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor 4 ptP l Itttlt/T" f1410 FILED-OFF C 'E TICE PROTHCl NO /'g °! 201 I APR 20 PM 2: 01 CUMBERLAND CLUNTy PENNSYLVANIA Hartford Accident & Injury Insurance Co. vs. Case Number XPEDX Equipment Center 2010-1951 SHERIFF'S RETURN OF SERVICE 04/15/2011 01:26 PM Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on April 15, 2011 at 1326 hours, she served a true copy of the within Complaint Joining Additional Defendant, upon the within named defendant, to wit: XPEDX Equipment Center, by making known unto Douglas Ahearn, perations Manager for XPEDX Equipment Center, 221 B S. Tenth Street, Lemoyne, Cumberland County, Pennsylvania 17043 its contents and at the same time handing to him personally the said true and correct copy of the same. L MICHELLE GUTSHALL, DEPUTY SHERIFF COST: $44.0b April 19, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF !c C;ou,rySuite 5^er,Y. Teiens-?'t. Inc. Johnson, Duffle, Stewart & Weidner By: Jeffrey B. Rettig I.D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com HARTFORD ACCIDENT AND INDEMNITY INSURANCE CO., AS SUBROGEE OF MCGINLEY MAINTENANCE, INC., and/or WILLIAM RODRIGUEZ, Plaintiffs V. PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA, Defendants V. LANTECH.COM, LLC and XPEDX, Additional Defendants Attorneys for Additional Defendant Lantech.Com, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO. 10-1951. r , CIVIL ACTION - LA4rb ink 1 '70= `D .: ' r10 la PRAEC/PE FOR ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Additional Defendant Lantech.Com, LLC in the above-captioned action. Respectfully submitted, DUFFIP, ?. WART & WEIDNER "re Rettig, E ire ttor %No. 19 6 301 M etreet Lemoyne, Pennsylvania 17043 717-761-4540 ibr ,jdsw.com Attorney for Additional Defendant :440601 Lantech.Com, LLC CERTIFICATE OF SERVICE AND NOW, this J' day of May, 2011 , the undersigned does hereby certify that he did this date serve a copy of the foregoing Praecipe for Entry of Appearance upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Robert F. Horn, Esquire White & Williams, LLP 1650 Market Street Suite 1800 Philadelphia, PA 19103 Counsel for Plaintiff Gerard X. Smith, Esquire Naulty, Scaricamazza & McDevitt. LLC 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19104 Counsel for Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America XPEDX 221 B South 10th Street Lemoyne, PA 17043 HN?SON, DUFF;IT4, STEWART & WEIDNER Jeffrey B. Rettig IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN@V PENNSYLVANIA ;CM C= HARTFORD ACCIDENT AND Civil Division INDEMNITY CO. as SUBROGEE OF , McGINLEY MAINTENANCE INC , ., and/or WILLIAM RODRIGUEZ, No. 10-1951 Plaintiffs, - ' - V. PEPSICO, INC., d/b/a PEPSI COLA NORTH AMERICA, ANSWER AND NEW MATTER OF DEFENDANT XPEDX TO DEFENDANT PEPSICO'S JOINDER COMPLAINT Defendant, V. LANTECH.COM, LLC and XPEDX, Additional Defendants. NOTICE TO PLEAD: TO: Defendant: You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from the date of service hereof or p'ud ent may be entered agarins ou. Filed on Behalf of Additional Defendant, XPEDX Counsel of Record for This Party: Dean F. Falavolito, Esquire Pa. I.D. No. 92844 Burns White LLC Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 Phone: (412) 995-3000 Fax: (412) 995-3300 dffalavolitokburnswhite com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARTFORD ACCIDENT AND Civil Division INDEMNITY CO., as SUBROGEE OF McGINLEY MAINTENANCE, INC., and/or WILLIAM RODRIGUEZ, Plaintiffs, No. 10-1951 V. PEPSICO, INC., d/b/a PEPSI COLA NORTH AMERICA, Defendant, V. LANTECH.COM, LLC and XPEDX, Additional Defendants. ANSWER AND NEW MATTER OF DEFENDANT XPEDX TO DEFENDANT PEPSICO'S JOINDER COMPLAINT Additional Defendant, XPEDX, by and through its undersigned counsel, files the following Answer and New Matter to Pepsico's Joinder Complaint. 1. Upon information and belief, XPEDX admits that Hartford filed a Complaint on or about May 28, 2010. 2. XPEDX lacks sufficient knowledge to admit or deny the allegations contained in Paragraph 2 of Pepsi's Joinder Complaint and, therefore, denies those allegations. 3. Upon information and belief, XPEDX admits that Defendant Pepsi filed its Answer and New Matter on or about November 24, 2010. 4. XPEDX admits that Hartford's Complaint includes the allegations made in Paragraph 4 of Pepsi's Joinder Complaint and denies all remaining allegations in Paragraph 4 of Pepsi's Joinder Complaint. 5. XPEDX lacks sufficient knowledge to admit or deny the allegations contained in Paragraph 5 of Pepsi's Joinder Complaint and, therefore, denies those allegations. 6. XPEDX lacks sufficient knowledge to admit or deny the allegations contained in Paragraph 6 of Pepsi's Joinder Complaint and, therefore, denies those allegations. 7. XPEDX lacks sufficient knowledge to admit or deny the allegations contained in Paragraph 7 of Pepsi's Joinder Complaint and, therefore, denies those allegations. 8. XPEDX admits that it and Pepsi entered into a Planned Maintenance Service Agreement prior to March 21, 2008, but denies the remaining allegations contained in Paragraph 8 of Pepsi's Joinder Complaint. 9. XPEDX admits that Pepsi makes certain allegations and affirmatively denies those allegations to the extent those allegations relate to XPEDX. 10. XPEDX denies the allegations contained in Paragraph 10 of Pepsi's Joinder Complaint to the extent those allegations relate to XPEDX. 11. XPEDX lacks sufficient knowledge to admit or deny the allegations contained in Paragraph 11 of Pepsi's Joinder Complaint and, therefore, denies those allegations. 12. XPEDX admits the allegations contained in Paragraph 12 of Pepsi's Joinder Complaint. 13. There is no allegation to which XPEDX must respond in Paragraph 13 of Pepsi's Joinder Complaint. 2 COUNT 1 XPEDX HAS NOT COMMITTED NEGLIGENCE 14. XPEDX hereby restates and incorporates its responses to the allegations contained in Paragraphs 1-13 of Pepsi's Joinder Complaint as if fully rewritten herein. 15. XPEDX denies the allegations contained in Paragraph 15 of Pepsi's Joinder Complaint to the extent those allegations relate to XPEDX. 16. XPEDX denies the allegations contained in Paragraph 16 of Pepsi's Joinder Complaint to the extent those allegations relate to XPEDX. IT XPEDX denies the allegations contained in Paragraph 17 of Pepsi's Joinder Complaint. WHEREFORE, Additional Defendant, XPEDX, requests that the Joinder Complaint be dismissed with prejudice and that it be awarded costs and fees, as well as any other relief deemed appropriate by the Court. COUNT II COUNT II DOES NOT RELATE TO XPEDX 18. XPEDX hereby restates and incorporates its responses to the allegations contained in Paragraphs 1-18 of Pepsi's Joinder Complaint as if fully rewritten herein. 19. Paragraph 19 of Pepsi's Joinder Complaint makes no allegations that relate to XPEDX; and, therefore, XPEDX neither admits nor denies the asserted allegations. 20. Paragraph 20 of Pepsi's Joinder Complaint makes no allegations that relate to XPEDX; and, therefore, XPEDX neither admits nor denies the asserted allegations. 21. Paragraph 21 of Pepsi's Joinder Complaint makes no allegations that relate to XPEDX; and, therefore, XPEDX neither admits nor denies the asserted allegations. 3 WHEREFORE, Additional Defendant, XPEDX, requests that the Joinder Complaint be dismissed with prejudice and that it be awarded costs and fees, as well as any other relief deemed appropriate by the Court. COUNT III XPEDX HAS NOT BREACHED ANY WARRANTY 22. XPEDX hereby restates and incorporates its responses to the allegations contained in Paragraphs 1-22 of Pepsi's Joinder Complaint as if fully rewritten herein. 23. XPEDX lacks sufficient knowledge to admit or deny the allegations contained in Paragraph 23 of Pepsi's Joinder Complaint and, therefore, denies those allegations. 24. XPEDX lacks sufficient knowledge to admit or deny the allegations contained in Paragraph 24 of Pepsi's Joinder Complaint and, therefore, denies those allegations. 25. XPEDX denies the allegations contained in Paragraph 25 of Pepsi's Joinder Complaint. 26. XPEDX denies the allegations contained in Paragraph 26 of Pepsi's Joinder Complaint to the extent those allegations relate to XPEDX. WHEREFORE, Additional Defendant, XPEDX, requests that the Joinder Complaint be dismissed with prejudice and that it be awarded costs and fees, as well as any other relief deemed appropriate by the Court. COUNT IV XPEDX HAS NOT BREACHED ANY CONTRACT 27. XPEDX hereby restates and incorporates its responses to the allegations contained in Paragraphs 1-27 of Pepsi's Joinder Complaint as if fully rewritten herein. 4 28. XPEDX admits that it entered into a Planned Maintenance Service Agreement with Pepsi to provide specifically detailed services but denies all other allegations contained in Paragraph 28 of Pepsi's Joinder Complaint. 29. XPEDX admits that the agreement included Planned Maintenance to four Q300 Lantech stretch wrappers but denies all additional allegations contained in Paragraph 29 of Pepsi's Joinder Complaint. 30. XPEDX denies the allegations contained in Paragraph 30 of Pepsi's Joinder Complaint. 31. XPEDX denies the allegations contained in Paragraph 31 of Pepsi's Joinder Complaint. 32. XPEDX denies the allegations contained in Paragraph 32 of Pepsi's Joinder Complaint. 33. XPEDX denies the allegations contained in Paragraph 33 of Pepsi's Joinder Complaint. 34. XPEDX denies the allegations contained in Paragraph 34 of Pepsi's Joinder Complaint. 35. XPEDX denies the allegations contained in Paragraph 35 of Pepsi's Joinder Complaint. WHEREFORE, Additional Defendant, XPEDX, requests that the Joinder Complaint be dismissed with prejudice and that it be awarded costs and fees, as well as any other relief deemed appropriate by the Court. 5 COUNT V XPEDX DOES NOT OWE PEPSI INDEMNIFICATION/CONTRIBUTION 36. XPEDX hereby restates and incorporates its responses to the allegations contained in Paragraphs 1-36 of Pepsi's Joinder Complaint as if fully rewritten herein. 37. XPEDX denies the allegations contained in Paragraph 37 of Pepsi's Joinder Complaint: to the extent those allegations relate to XPEDX. WHEREFORE, Additional Defendant, XPEDX, requests that the Joinder Complaint be dismissed with prejudice and that it be awarded costs and fees, as well as any other relief deemed appropriate by the Court. NEW MATTER 38. The Joinder Complaint has failed to allege facts sufficient to state a claim for relief against the Defendants. 39. XPEDX denies every allegation in the Joinder Complaint not expressly admitted in this Answer. 40. Plaintiff's and Defendant's claims are barred by the doctrine of laches. 41. Plaintiff's and Defendant's claims are barred by the doctrine of waiver. 42. Plaintiffs and Defendant's claims are barred by the applicable statute of limitations. 43. Plaintiffs and Defendant's claims are barred by the doctrine of estoppel. 44. Plaintiffs and Defendant's claims are barred by improper joinder. 45. Plaintiffs and Defendant's claims are barred from recovery in whole or in part because of its insureds own negligence. 6 46. If liability is assessed, the percentage of fault that allegedly caused Plaintiff's and Defendant's injuries should be apportioned among the Plaintiff and Defendant and other persons or entities whose conduct contributed to plaintiff's alleged injuries. 47. Plaintiff's alleged damages, if any, were caused by independent, unforeseeable, superseding and/or intervening causes sufficient to exculpate Additional Defendant XPEDX from liability. 48. Pepsico's recovery against XPDEX, if any, is limited pursuant to the "Limitations of Liability" and "Indemnification" provisions of the Planned Maintenance Service Agreement, which is attached as Exhibit D to the Joinder Complaint. WHEREFORE, Additional Defendant, XPEDX, requests that the Joinder Complaint be dismissed with prejudice and that it be awarded costs and fees, as well as any other relief deemed appropriate by the Court. Respectfully submitted, Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 Phone: (412) 995-3000 Fax: (412) 995-3300 dffalavolitogburnswhite com Attorneys for Additional Defendant XPEDX 7 Pa. I.D. #92844 VERIFICATION 1, Matthew Peters, verify and state that I am authorized to make this Verification, that I have read the statements contained in the foregoing Answer and New Matter of Defendant XPEDX to Defendant Pepsico's Joinder Complaint, and that the statements contained herein are true and correct to the best of my knowledge, information and belief. These statements are made subject to the penalties set forth in 18 Pa. C.S.A. Section 4904, relating to unsworn falsifications to authorities. y---7 .ter Matthew Pet rs, Date: 7- LSD' /j CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Answer and New Matter of Defendant XPEDX to Defendant Pepsico's Joinder Complaint was sent via first class mail on the 28`" day of July, 2011, to: Robert F. Horn, Esquire White & Williams, LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 Counsel for Plaintiff Gerard X. Smith, Esquire Naulty Scaricamazza & McDevitt, LLC 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 Counsel for Defendant Pepsico, Inc., d1b/a Pepsi Cola North America Jeffrey B. Rettig, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Counsel for Additional Defendant Lantech.com By: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARTFORD ACCIDENT AND INDEMNITY CO., as SUBROGEE OF McGINLEY MAINTENANCE, INC., and/or WILLIAM RODRIGUEZ, Plaintiffs, V. PEPSICO, INC., d/b/a PEPSI COLA NORTH AMERICA, Defendant, V. LANTECH.COM, LLC and XPEDX, Additional Defendants. Civil Division u7s? No. 10-1951 G-, _a c- MOTION TO ADMIT - MATTHEW K. BUCK PRO HAC VICE s ?L Filed on Behalf of Additional Defendant, xpedx Counsel of Record for This Party: Dean F. Falavolito, Esquire Pa. I.D. No. 92844 Burns White LLC Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 Phone: (412) 995-3000 Fax: (412) 995-3300 dffalavolitogburnswhite.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARTFORD ACCIDENT AND INDEMNITY CO., Civil Division as SUBROGEE OF McGINLEY MAINTENANCE, INC., and/or WILLIAM RODRIGUEZ, Plaintiffs, No. 10-1951 V. PEPSICO, INC., d/b/a PEPSI COLA NORTH AMERICA, Defendant, V. LANTECH.COM, LLC and XPEDX, Additional Defendants. MOTION TO ADMIT MATTHEW K. BUCK PRO HAC VICE AND NOW comes Dean F. Falavolito, Esquire, counsel for Additional Defendant xpedx, pursuant to Rule 301 of the Pennsylvania Bar Admissions Rules, and files the following Motion to Admit Matthew K. Buck Pro Hac Vice in the above-captioned matter. 1. xpedx was joined as an Additional Defendant in this matter via Joinder Complaint filed by Defendant PepsiCo, Inc. ("PepsiCo') on April 4, 2011. 2. Judge M.L. Elbert, Jr. has previously ruled on a discovery motion in this matter and issued an Order on October 5, 2011 regarding the same. 3. Matthew H. Buck is an attorney and Senior Counsel for Additional Defendant xpedx. 4. Mr. Buck is licensed to practice law in the Commonwealth of Kentucky and the State of Ohio. 5. Mr. Buck is a member in good standing of the bars of Kentucky and Ohio. (See Certificates of Good Standing from Kentucky and Ohio, attached as Exhibits A & B, respectively). 6. Mr. Buck seeks special admission to the Bar of this Commonwealth pursuant to Rule 301 of the Pennsylvania Bar Rules for the purpose of participating with the undersigned counsel in further proceedings and trial in the above-captioned action. 7. No party will suffer any prejudice by the admission of Mr. Buck's Pro Hac Vice for the above-captioned lawsuit. WHEREFORE, Additional Defendants, xpedx, by and through their counsel, Dean F. Falavolito, respectfully request that this Honorable Court enter an Order permitting the Admission Pro Hac Vice of Matthew H. Buck, Esquire to this Court for the specific purpose of the defense of the above-captioned action. Respectfully submitted, BURNS Pa. I.D. #92844 Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 Phone: (412) 995-3000 Fax: (412) 995-3300 dffalavolitogbumswhite. com Attorneys for Additional Defendant xpedx KENTUCKY BAR ASSOCIATION OFFICERS 514 WEST MAIN STREET Margaret E. Keane FRANKFORT, KENTUCKY 40601-1812 President (502) 564-3795 W. Douglas Myers FAX (502) 564-3225 President-Elect www.kybar.org Thomas L. Rouse Vice President Davis Bruce K SAR 4 T . Past President , YOUNG LAWYERS W ? Rebekkah Bravo Rechter ? Chair C \ ,n', EXECUTIVE DIRECTOR John D. Meyers THIS IS TO CERTIFY THAT MATTHEW KELLEYBUCK International Paper 6400 PoplarAvenue Tower 2, Fourth Floor Memphis, Tennessee 38197 Membership No. 89991 BOARD OF GOVERNORS Douglas C. Ballantine Anita M. Britton Douglass Farnsley Jonathan Freed William R. Gartner James D. Harris, Jr. Richard Hay Serieta G. Jaggcrs David V. Kramer Earl M. McGuire Bobby Rowe J. Stephen Smith R. Michael Sullivan M. Gail Wilson is an active member in good standing with the Kentucky Bar Association as required by the Rules of the Supreme Court of Kentucky. Dated this 19`h day of September, 2011. JOHNMEYERS REGISTRAR By.• . Michell M. Pogro ky, eputy egistrar EXHIBIT Tbe 6upreme court of Obio CERTIFICATE I, SUSAN B. CHRISTOFF, Director of the Attorney Services Division of the Supreme Court of Ohio, do hereby certify that I am the custodian of the records of the Office of Attorney Services of the Supreme Court and that the Attorney Services Division is responsible for reviewing Court records to determine the status of Ohio attorneys. I further certify that, having fulfilled all of the requirements for admission to the practice of law in Ohio, Matthew Kelley Buck was admitted to the practice of law in Ohio on November 12, 1996; has registered as an active attorney pursuant to the Supreme Court Rules for the Government of the Bar of Ohio; is in good standing with the Supreme Court of Ohio; and is entitled to practice law in this state. IN TESTIMONY WHEREOF, I have subscribed my name and affixed the seal of the Supreme Court, this 21 st day of September, 2011. SUSAN B. CHRISTOFF Director, Attorney Services Division Attorney SerO s Specialist CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Motion to Admit Matthew K. Buck Pro Hac Vice was sent via first class mail on the day of November, 2011, to: Robert F. Horn, Esquire White & Williams, LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 Counsel for Plaintiff Gerard X. Smith, Esquire Naulty Scaricamazza & McDevitt, LLC 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 Counsel for Defendant Pepsico, Inc., d/b/a Pepsi Cola North America Jeffrey B. Rettig, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Counsel forAdditional Defendant Lantech.com By: r , f"yl I h0i14v lAkR,'t 2013 SEP -6 Ail 1IJ: 52 CUMBERLAND COUNTY PENNSYLVANIA Johnson, Duffie, Stewart&Weidner By: Jeffrey B. Rettig, Esquire I.D. No. 19616 Attorneys for Additional Defendant, 301 Market Street Lantech.Com, LLC P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr @jdsw.com HARTFORD ACCIDENT AND IN THE COURT OF COMMON PLEAS OF INDEMNITY INSURANCE CO., AS CUMBERLAND COUNTY, PENNA. SUBROGEE OF MCGINLEY MAINTENANCE, INC., and/or NO. 10-1951 WILLIAM RODRIGUEZ, Plaintiffs CIVIL ACTION — LAW V. PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA, Defendants V. LANTECH.COM, LLC and XPEDX, Additional Defendants NOTICE TO PLEAD TO: Plaintiff, Hartford Accident and Indemnity Insurance Co., as Subrogee of McGinley Maintenance, Inc., and/or William Rodriguez c/o Robert.F. Horn, Esquire Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America c/o Gerard X. Smith, Esquire Defendant, XPEDX c/o Dean F. Falavolito, Esquire You are hereby notified to file a written response to the enclosed Additional Defendant's Answer to the Joinder Complaint of Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER BY: Jeffr Vrx ettig, Esq e 301 e treet P.O. 09 Lemoyne, PA 17043-0109 (717) 761-4540 jbr @jdsw.com Counsel for Additional Defendant, Lantech.com, LLC Date: September 5, 2013 2 Johnson, Duffie, Stewart &Weidner By: Jeffrey B. Rettig, Esquire. I.D. No. 19616 Attorneys for Additional Defendant, 301 Market Street Lantech.Com, LLC P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr @jdsw.com HARTFORD ACCIDENT AND IN THE COURT OF COMMON PLEAS OF INDEMNITY INSURANCE CO., AS CUMBERLAND COUNTY, PENNA. SUBROGEE OF MCGINLEY MAINTENANCE, INC., and/or NO. 10-1951 WILLIAM RODRIGUEZ, Plaintiffs CIVIL ACTION — LAW V. : PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA, Defendants V. : LANTECH.COM, LLC and XPEDX, Additional Defendants ANSWER OF ADDITIONAL DEFENDANT, LANTECH.COM, LLC, TO JOINDER COMPLAINT OF DEFENDANT, PEPSICO, INC. D/B/A PEPSI COLA NORTH AMERICA, WITH NEW MATTER AND NOW, comes the Additional Defendant, Lantech.com, LLC, by and through its counsel, Johnson, Duffie, Stewart & Weidner, and files the following Answer with New Matter to the Joinder Complaint of Defendant, Pepsico, Inc. d/b/a Pepsi Cola North America, and states as follows: 1. Upon information and belief, admitted. By way of further response, the Complaint is a written document filed of record which speaks for itself. 2. After reasonable investigation, Answering Additional Defendant is without sufficient information as to the truth or falsity of said averments. Therefore, said averments are denied and strict proof is demanded at the time of trial. 3. Upon information and belief, admitted. By way of further response, the Defendant's Answer with New Matter is a written document filed of record which speaks for itself. 4. Insofar as Paragraph 4 refers to the Plaintiff's Complaint, the Complaint is a written document filed of record which speaks for itself. 5. Additional Defendant is without sufficient information as to the truth or falsity of said averments. Therefore, said averments are denied and strict proof is demanded at the time of trial. 6. Additional Defendant is without sufficient information as to the truth or falsity of said averments. Therefore, said averments are denied and strict proof thereof is demanded at the time of trial. 7. Admitted in part; denied in part. It is admitted that the Additional Defendant manufactured the Q300 Lantech stretch wrapper. It is denied that Lantech.com installed the stretch wrapper in question. By way of further response, the Lantech Service Log attached to the Joinder Complaint as Exhibit "C" is a written document which speaks for itself. 2 8. After reasonable investigation, Additional Defendant is without sufficient information as to the truth or falsity of said averments. Therefore, said averments are denied and strict proof thereof is demanded at the time of trial. By way of further response, the Planned Maintenance Service Agreement attached to the Joinder Complaint as Exhibit "D" is a written document which speaks for itself. 9. Upon information and belief, Additional Defendant admits that the Defendant attempts to make said allegations. However, Additional Defendant denies the allegations to the extent they relate to Lantech.com, LLC. 10. Denied. Additional Defendant, Lantech.com, LLC, denies the allegations contained in Paragraph 10 to the extent those allegations are directed to Lantech.com, LLC. By way of further response, the allegations set forth in Paragraph 10 set forth legal conclusions to which no response is required. To the extent a response is deemed necessary, said averments are denied and strict proof thereof is demanded at the time of trial. 11. Admitted. 12. After reasonable investigation, Additional Defendant is without sufficient information as to the truth or falsity of said averments. Therefore, said averments are denied and strict proof thereof is demanded at the time of trial. 13. Paragraph 13 contains no allegation to which the Additional Defendant must respond. However, it is denied that the Additional Defendant owes any right of contribution or liability over to any other party to this lawsuit. 3 COUNT I — NEGLIGENCE Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendant Lantech.com, LLC and Xpedx 14. Additional Defendant repeats and reiterates all of its responses to Paragraphs 1 through 13 above as though fully set forth at length herein. 15. Paragraph 15 sets forth a legal conclusion to which no response is required. To the extent a response is deemed necessary, said averments as they relate to Additional Defendant, Lantech.com, LLC., are denied and strict proof thereof is demanded at the time of trial. 16. Paragraph 16 and all of its subparts set forth legal conclusions to which no response is required. To the extent a response is deemed necessary, said averments as they relate to Additional Defendant, Lantech.com, LLC., are denied and strict proof thereof is demanded at the time of trial. 17. Paragraph 17 sets forth a legal conclusion to which no response is required. To the extent a response is deemed necessary, said averments as they relate to Additional Defendant, Lantech.com, LLC., are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Additional Defendant, Lantech.com, LLC., respectfully requests that this Honorable Court find in favor of the Additional Defendant, Lantech.com, LLC., and dismiss the Joinder Complaint with costs and prejudice imposed. 4 COUNT 11 — PRODUCTS LIABILITY Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Addition Defendant Lantech.com, LLC 18, Additional Defendant repeats and reiterates all of its responses to Paragraphs I through 17 above as though fully set forth at le"ngth herein. 19. Admitted in part; denied in part. It is admitted that Additional Defendant, Lantech.com, LLC, manufactured the product that is the basis for this lawsuit. It is denied that that the product was dangerous and/or defective or that it was installed and/or serviced by the Additional Defendant. 20. Denied. It is denied that the product was unreasonably dangerous to the consumer or user and that the Additional Defendant knew or should have known that the product was unreasonably dangerous to the consumer or user, as alleged. 21. After reasonable investigation, Additional Defendant is without sufficient information as to the truth or falsity of the averments of Paragraph 21 as �'hey relate to alleged personal injuries. Strict proof thereof is demanded at the time of trial. By way of further response, Paragraph 21 sets forth a legal conclusion to which no response is required. 'To the extent a response is deemed necessary, said averments are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Additional Defendant, Lantech.com, LLC., respectfully requests that this Honorable Court find in favor of the Additional Defendant, Lantech.com, LLC., and dismiss the Joinder Complaint with costs and prejudice imposed. 5 COUNT III — BREACH OF WARRANTY Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendant Lantech.com. LLC and Xpedx 22. Additional Defendant repeats and reiterates all of its responses to Paragraphs 1 through 21 above as though fully set forth at length herein. 23. Admitted with clarification. It is admitted that Additional Defendant warrants that its products are fit for their intended use. Where its products are not installed, maintained, or operated pursuant to their intended use, the warranty does not apply. 24. Denied, Paragraph 24 sets forth a legal conclusion to which no response is required. To the extent a response is deemed necessary, said averments are denied and strict proof thereof is demanded at the time of trial. By way of further response, it is denied that the product manufactured by the Additional Defendant was not fit for its intended purpose. It is further denied that the Additional Defendant installed the product in question. 25. After reasonable investigation, Additional Defendant is without sufficient information as to the truth or falsity of said averments. Therefore, said averments are denied and strict proof thereof is demanded at the time of trial. 26. Paragraph 26 sets forth a legal conclusion to which no response is required'. To the extent a response is deemed necessary, said averments are denied and strict proof thereof is demanded at the time of trial. By way of further response, it is denied that the Additional Defendant breached any warranty. 6 WHEREFORE, Additional Defendant, Lantech.com, LLC., respectfully requests that this Honorable Court enter judgment in its favor and against all other parties with costs and prejudice imposed. COUNT IV — BREACH OF CONTRACT Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendant Expedx 27. Additional Defendant repeats and reiterates all of its responses to Paragraphs 1 through 26 above as though fully set forth at length herein. 28 — 35. Paragraphs 28 through 35 are directed to an Additional Defendant other than Answering Additional Defendant and therefore, no response is required. WHEREFORE, Additional Defendant, Lantech.com, LLC., respectfully requests that this Honorable Court enter judgment in its favor and against all other parties with costs and prejudice imposed. COUNT V — INDEMNIFICATION/CONTRIBUTION Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendant Lantech.com and Xpedx 36. Answering Additional Defendant repeats and reiterates all of its responses to Paragraphs 1 through 35 above as though fully set forth at length herein. 37. Paragraph 37 sets forth a legal conclusion to which no response is required. To the extent a response is deemed necessary, said averments as they relate to the Answering:Additional Defendant, Lantech.com, LLC, are denied and strict proof thereof is demanded at the time of trial. 7 WHEREFORE, Additional Defendant, Lantech.com, LLC., respectfully requests that this Honorable Court enter judgment in its favor and against all other parties with costs and prejudice imposed. NEW MATTER 38. The Joinder Complaint fails to allege facts sufficient to state a claim for relief against the Additional Defendant, Lantech.com, LLC. 39. Additional Defendant, Lantech.com, LLC, denies every allegation in the Joinder Complaint not expressly admitted in its answers to the same. 40. The claims of the Plaintiff and Defendant are barred by the Doctrine of Laches. 41. The claims of the Plaintiff and Defendant are barred by the Doctrine of Waiver. 42. The claims of the Plaintiff and Defendant are barred by the applicable statute of limitations. 43. The claims of the Plaintiff and Defendant are barred by the Doctrine of Estoppel. 44. The claims of the Plaintiff and Defendant are barred by improper joinder. 45. The claims of the Plaintiff and Defendant are barred from recovery in whole or in part due to the negligence of themselves and by their insureds own negligence. 46. The Plaintiffs alleged damages, if any, were caused by independent, unforeseeable, superseding and/or intervening causes other than that of the Additional Defendant, Lantech.com, LLC. 8 WHEREFORE, Additional Defendant, Lantech.com, LLC, respectfully requests that this Honorable Court enter judgment in its favor and against all other parties and that the Joinder Complaint be dismissed with prejudice and costs imposed. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER BY: Jeffr Itig, Esqu'r Atto e I o. 19616 301 rk treet Lemoyne, Pennsylvania 17043 717.761.4540 ibrCa)jdsw.com Counsel for Additional Defendant, Lantech.Com, LLC Date: September 5, 2013 9 VERIFICATION I, Jack Kelley, hereby acknowledge that I am the Defendant in this action; that I have read the foregoing Answer with New Matter to Joinder Complaint; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. A K KELLEY Dated: August�, 2013 CERTIFICATE OF SERVICE AND NOW, this 5th day of September , 2013, the undersigned does hereby certify that he did this date serve a copy of the foregoing Answer with New Matter of Additional Defendant, Lantech.com, LLC, to Joinder Complaint upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Robert F. Horn, Esquire White &Williams, LLP 1650 Market Street Suite 1800 Philadelphia, PA 19103 Counsel for Plaintiff Gerard X. Smith, Esquire Naulty, Scaricamazza & McDevitt. LLC 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19104 Counsel for Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America Dean F. Falavolito, Esquire Burns White Attorneys at Law Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 Counsel for Additional Defendant XPEDX JOHNSON, DUFFIE, STEWART &WEIDNER BY: ' Jeff ettig OF I HE PRofj1 ONO T A R Y 2013 SEP 23 Pit 1: I I CUMBERLAND COUNTY PENNSYLVANIA NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR DEFENDANT PepsiCo., Inc.d/b/a Pepsi Cola North America HARTFORD ACCIDENT AND INDEMNITY I COURT OF COMMON PLEAS INSURANCE CO., AS SUBROGEE OF CUMBERLAND COUNTY MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ NO. 10-1951 V. PEPSICO., INC. D/B/A PEPSI COLA NORTH AMERICA V. ' LANTECH.COM, LLC AND XPEDX REPLY OF DEFENDANT, PepsiCo., Inc. d/b/a Pepsi Cola North America, TO ADDITIONAL DEFENDANT LANTECH.COM. LLC'S NEW MATTER 38. Denied. The allegations contained in Paragraph 38 of Additional Defendant's New Matter constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, and the to the extent a response is required, it is specifically denied that the Joinder Complaint fails to allege facts sufficient to state a claim for relief against Additional Defendant Lantech.com, LLC. 39. Denied. The allegations contained in Paragraph 39 of Additional Defendant's New Matter constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. 40. Denied. The allegations contained in Paragraph 40 of Additional Defendant's New Matter constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, and the to the extent a response is required, it is specifically denied that the claims of Defendant are barred by the Doctrine of Laches. 41. Denied. The allegations contained in Paragraph 41 of Additional Defendant's New Matter constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, and the to the extent a response is required, it is specifically denied that the claims of Defendant are barred by the Doctrine of Waiver. 42. Denied. The allegations contained in Paragraph 42 of Additional Defendant's New Matter constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, and the to the extent a response is required, it is specifically denied that the claims of Defendant are barred by the applicable Statute of Limitations. 43. Denied. The allegations contained in Paragraph 43 of Additional Defendant's New Matter constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, and the to the extent a response is required, it is specifically denied that the claims of Defendant are barred by the Doctrine of Estoppel. 44. Denied. The allegations contained in Paragraph 44 of Additional Defendant's New Matter constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, and the to the extent a response is required, it is specifically denied that the claims of Defendant are barred by improper joinder. 45. Denied. The allegations contained in Paragraph 45 of Additional Defendant's New Matter constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, and the to the extent a response is required, it is specifically denied that the claims of Defendant are barred from recovery in whole or in part due to the negligence of themselves and by their insureds own negligence. 46. Denied. The allegations contained in Paragraph 46 of Additional Defendant's New Matter constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, and the to the extent a response is required, it is specifically denied that Plaintiff's alleged damages were caused by independent, unforeseeable, superseding and/or intervening causes -- 2 -- other than that of the Additional Defendant Lantech.com, LLC. WHEREFORE,Answering Defendant, PepsiCo., Inc.d/b/a Pepsi Cola North America,hereby prays that Additional Defendants, Lantech.com, LLC's,New Matter be dismissed with prejudice and thatjudgment be entered in favor or Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, and against all parties hereto for all sums whatsoever. NAULTY, SCARICAMAZZA & McDEVITT, LLC. r BY. GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America -- 3 -- VERIFICATION I, Gerard X. Smith, Esquire, attorney for the defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby verify that the facts set forth in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. GERARD X. SMITH, ESQUIRE NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR DEFENDANT PepsiCo., Inc.d/b/a Pepsi Cola North America HARTFORD ACCIDENT AND INDEMNITY I COURT OF COMMON PLEAS INSURANCE CO., AS SUBROGEE OF CUMBERLAND COUNTY MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ NO. 10-1951 V. ' PEPSICO., INC. D/B/A PEPSI COLA NORTH I AMERICA I V. ' LANTECH.COM, LLC AND XPEDX I CERTIFICATE OF SERVICE I, Gerard X. Smith, Esquire, hereby certify that, on September 18, 2013, 1 served a copy of the foregoing Reply to New Matter on all counsel of record via U.S. Mail, First Class, postage prepaid, addressed as follows: Jeffrey B. Rettig, Esquire Law Offices Johnson Duffie 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 James R. Murdaco, Esquire White &Williams, LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 Dean F. Falavolito, Esquire Burns White Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 Matthew Kelley Buck, Esquire International Paper 6400 Poplar Avenue Tower 2, Fourth Floor Memphis, TN 38197 NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America NAULTY, SCARICAMAZZA & McDEVITT, LLC. I- � BY: GERARD X. SMITH, ESQUIRE r,;$. HIE "r''r`0Tf-0N0 r.=1kR1` ANN L. LONGO, ESQUIRE Identification Number: 40927 / 92645 2U113 DEC [ 9 PM 2: 5-2' 1617 John F. Kennedy Boulevard aU L~R1 AND COUNIT°� 750 One Penn Center � t�SY � 1 Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR DEFENDANT PepsiCo., Inc. d/b/a Pepsi Cola North America HARTFORD ACCIDENT AND INDEMNITY I COURT OF COMMON PLEAS INSURANCE CO., AS SUBROGEE OF CUMBERLAND COUNTY MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ I NO. 10-1951 V. PEPSICO., INC. D/B/A PEPSI COLA NORTH AMERICA I V. LANTECH.COM, LLC AND XPEDX DEFENDANT, PEPSICO., INC. d/b/a PEPSI COLA NORTH AMERICA'S MOTION FOR SUMMARY JUDGMENT Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America (hereinafter, "PepsiCo."), by and through its attorneys, Naulty, Scaricamazza & McDevitt, LLC, hereby files this Motion for Summary Judgment and in support thereof avers the following: 1. Plaintiff, Hartford Accident and Indemnity Insurance Company (hereinafter, "Hartford") initiated this action by Writ of Summons. Plaintiff thereafter filed a Complaint on or about May 28, 2010. (A true and correct copy of Plaintiffs Complaint has been attached hereto and marked as Exhibit "A'). 2. Defendant PepsiCo. filed its Answer and New Matter to Plaintiff's Complaint with this Honorable Court on or about November 24, 2010. (A true and correct copy of said Answer has been attached hereto and marked as Exhibit "8'). 3. After obtaining Leave of Court, Defendant PepsiCo. filed a Joinder Complaint against Lantech.com, LLC (hereinafter, "Lantech"), the manufacturer of the stretch wrapper and xpedx, the planned maintenance service provider for the stretch wrapper in question. (A true and correct copy of -- 2 -- Defendant's Joinder Complaint without Exhibits has been attached hereto and marked as Exhibit "C'). 4. This lawsuit is a subrogation action stemming from an incident occurring on March 21, 2008, when William Rodriguez, an employee of McGinley Maintenance, Inc., was allegedly injured by an electrical shock he received while stretch wrapping pallets at Defendant's facility in Carlisle, Pennsylvania. (See Exhibit "A'). 5. Plaintiff provided worker's compensation insurance coverage to McGinley Maintenance, Inc. (See Exhibit "A'). 6. As a result of the March 2008 incident, Plaintiff paid in excess of$30,000 in medical and indemnity benefits to Mr. Rodriguez for his alleged injuries. 7. Plaintiff filed the instant Complaint, sounding in negligence and strict liability, against Defendant seeking reimbursement for the amounts paid to Mr. Rodriguez as a result of his worker's compensation claim. (See Exhibit "A'). 8. Mr. Rodriguez did not file a third party action against Defendant and is not a party in his own right to the instant litigation. 9. Pennsylvania Rule of Civil Procedure 1035.2 (1) provides, in pertinent part, that any party may move for Summary Judgment after pleadings are closed and "whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report." 10. In Pennsylvania, there is no independent cause of action for insurance carriers against third parties whose alleged negligence caused a worker's injuries. Liberty Mutual Ins. Co. v. Domtar Paper Co., 2013 Pa. Super. LEXIS 2682; 2013 PA Super 262; 2013 WL 5423850 (Pa. Super. Ct. 2013), reargument denied at 2013 Pa. Super. LEXIS 3174 (Pa. Super. Ct., Nov. 22, 2013); See also, Reliance Insurance Co. v. Richmond Machine Co., 309 Pa. Super. 430, 455 A.2d 686 (Pa. Super. 1983). (A true and correct copy of the Superior Court's opinion in Liberty Mutual Ins. Co. v. Domtar Paper Co. is attached hereto as Exhibit "D'). 11. Because Plaintiff does not have the right to bring suit directly against Defendant PepsiCo., summary judgment is appropriate. -- 3 -- WHEREFORE, Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America respectfully requests this Honorable Court to enter an order granting its Motion for Summary Judgment and dismiss Plaintiff's Complaint, as well as any and all cross claims, against it with prejudice. Respectfully submitted, NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: A L. LONGO, S U RE GERARD X. SMITH, QUIRE Attorney for Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America -- 4 -- VERIFICATION I, Ann L. Longo, Esquire, do hereby verify that I am attorney for the Defendant in the foregoing action and that the facts set forth in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. AM L. LOWCLOSU RE NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE ANN L. LONGO, ESQUIRE Identification Number: 40927/ 92645 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR DEFENDANT PepsiCo., Inc d/b/a Pepsi,Cola North America HARTFORD ACCIDENT AND INDEMNITY i COURT OF COMMON PLEAS INSURANCE CO., AS SUBROGEE OF CUMBERLAND COUNTY MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ NO. 10-1951 V. PEPSICO., INC. D/B/A PEPSI COLA NORTH AMERICA V. LANTECH.COM, LLC AND XPEDX CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within Motion for Summary Judgment was made on December 17, 2013 to the counsel named below, by United States Mail, postage prepaid: James R. Murdaco, Esquire White & Williams, LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 Jeffrey B. Rettig, Esquire Law Offices Johnson Duffie 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Dean F. Falavolito, Esquire Burns White Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 Matthew Kelley Buck, Esquire International Paper 6400 Poplar Avenue Tower 2, Fourth Floor Memphis, TN 38197 NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: 0111-V 6 A L. LON t0�,8Sq6fRE GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America Robe rt`. 1 orf;. squ e. I�54r31�lar� flee�,ibettolce, te 00 rhorrir t��►};teandi��is:com: . A2 `4CCD . ' ; CITY:: iI4 �CL�I�ION ,EA ' Y,as strbrogee of CO ' �Iar''04-d-d'j�za !,r YGlLltl �: . PER s . 0 Y `t� Ta 1~Y EN `i N flt3R . t� a r x y ,Q SSh�tdec�is aauth'��ta�Ynet6i3in3tt►eallbwmg�agcsau must t81ce�ct�on 3vatlun 3Wenty U dais after this�o�n i apt �g oppv -iScFaied by ent�rahg,�a tten ap�ear��ttr ersQnaYly of b�at{'ofrncy,and�l�ng�n svnun�'wtth-t�t�oyotir��fehses�r o'b e�ttbn�2�;t�c clai�-�e`l�orth-agau��t�o}�y��,are y+arni� r .,, Y•Proceed•�r�p'gtr„°nn ���..Bment�-�'y�e- erg;a;�a�r�ty{a�bj+���c�rf�ua-ila©iii.`^ f�rt6er-"notice foransy,�nonty�la�rre�d�n tl���om�la �nr�nr.�jY-"""�i�r�atm¢�flit;�'�etu��'te��y�h���a'in�t�`>`�'nu�n�j��o'se= rtto�r��orlif#��et{y or�ih''er ng}3tts�mpo=E�nt�io�¢d . G1M�70T AFb{3i1E4 TO OTt3, ilI { 0 � AWw £Rl✓ 13. MAY;GE l EC�1V3ELR.: C�r�1B� A$�D�OL�N�'.y=B,4�t�Sf�C71��`3p'N Sb. brl8;' b3g�v:7 EXHIBIT �43 - . � Robert F.Hom,EsgairE White and Williams,.LI.P 1,650 Market`Street " Ohe Libdty Place,Suite.8-060" Phladellhia,.PA 19103" 21S"864-:71-32 hornr@whiteandUViiliaans.c<irn HARTF(3 CCII} NT AND CQURT..C}F CC}M1vIEJN ?LEA S IN UI NCE COMPANY,'as:sUb-F,# o..Of CIAIB.EKLA I C( 3NTY I`srlCG ILEY MAINT'ENAh�CE Wf udlor JURY-TRIAL.-D> WILLIAM RODT IGTjEZ- Hartford Plain_ : CASE NO: :2fi1{3-Q1'951- .Hartford CT 961.1-5 Plaintiff, . vs. A-TWITIZATI0 CASE PEPS),Co INC. ISO Payetteville 5t:,Box I Q1.1 Raleigh:NC 27601 ; Defendant: C(Jtt l?LAINIT Plaintiff =14artfbrd A eexdertt and Iridernriity Insurance -Company :a/s/o .McGinley Ivlaintsztance; ltic: and/or" rV lliam. od"ziguez, J?y-and fhroug its fittorne�yG, ?hite:arid wjIl ai»s LLP;Hereby alleges and"sfates as fallgws: ."TPARTI£S I. PWhti6.Hartford":-Acclde iit Arid 111fdo'b nrty Iiis ranee Cirmpany also 1' o, ifiley Maintenance; Inc. arieVbr jWlll am ltbdngi ez there pr "Hart#c�rd }, "is Connecticut torporation and a'liceilsed nsuraai a provider ri the:State of Connectieut::vtrjtit.a principal }lace tl `business located. :atTart#orcl -P.la7a, �Iartl'otd, Connecticut". "At allolevairt times hereto, HcOfpr4 was-autho zedio issue Qlieies a€ i�st3rance h 1h Cornri�anweai i of P nnsy7van a. I 624328'7v.1 • McGinley IVlainteriance; Ifc. ( ereirlfter 1eGin ley") is a Pennslijania cQrporatiori with its principal place of ziYess.;locate ' elle-Vei%op,Peruisyluania. 3Tpou iziforniatiozz aria lsedief, be#e lid tt l'epsiCor Lid. (Hereinafter L`PegsiCo") is Porporation who awned and operated:a parka :,fig and disW,cation :facility%ri CaimbeTland Couri lacated at 1341 Dis#ributian.E?rive, Caazlzsie� etnyivaia uFhere the sizllject.;accidertt occurred. 4, At all :times. relevant Arid iiiatei:zal hereto, PepsiCo vvas in_ the business of antaactring;.assembling, distrbutir g; se 1ng, and:spPPlyin9, inter aiia, beverage and fond products. J,1 SbICTI4N - THis Court has jurisdiction over the I34indant.::and the` subject° chatter.of this action basedbpon:tlie foilowirig substantial:contacts-v nth:#he:Comm4nwealtli:ofPeriiisylvan3a: ( ) The. D:efendai3t. his: conducted the continues to coriduct substantial busmes,s-in Pcnnsylvaiiia z�ai;:arreg lai basis; and. The,incitlerid;giving rise to this:astioa ceuiiei3 a�i-Pennsylvania .. Venue is proper-in.Ciainberland COUnty -because efentlant reg laxly conducts business; . G uriberlarai . bounty; .mod tlxe ..Inc'dent :gzving :I-Se t "this action eccuricd ri-11 Cwhberhind Cowity, FACTUAL,,BA CKGRC3Ifi 7 Prior, io March 21, 200$, Defend a4t PepsiCo contracted MbG nley to perform packaging.al9d shipping secures at one of Pepsi wz pacica9iifg` facilities lodated at 134'1 Diatribiition I3rive,: shrink wrapping pallets the using an electric s}nink Wtap .-machine 'Oereinatter "subject machine"),owned and<JnOniairted;by Peps CQ, 9: On gore i1, 21 p$, t�adr guez vua5 xaRping: po et:us ng: e su iject machi ne when he.was.he jolted by:a evete electrical shoc)�;from the subject machine: The electrical shock c=oj.Mr Rodriguez,taf l to ground where he struc�k.�is.l ead.- I0: The injuries.sustained by Mr. Rodriguez was the direct result of the Pe§pico's negligent maintenance of the subject 3nachtne and negligent- fAjiure 1.o'yearn ats employees; agents, xepresentatiVes;and subcflnt odor. of the dangert�us defects o e subject.Machine. l 1, At-all times relevant_.he>eto, Hartford workers compensaon insurange coverage to.Mccii-Oley: 12. Pursuant to the terms of the policy, Hartfordi paid in excess of$30,557 0 in medieal and indemnity belief is to Mr. Rodriguez foz injui es he =sdstaiiied from the electric shock-And resulting fail. 13. By virtue of the payrr3r Made to Mr. :Rodriguez-in accordance-with the terms .and Conditions of the,pQcy,: lariford s 10 r suh rogateci:.to.the rights of its insured igaing3k party or parties.responsible for Mn Rodrig iez's`»juries. p4initf# !: ' psiC ;Ine: 14. _Plaintiff-Incorporates-#heAie$atiuz s cor to ned,in paragraphs.1 thron� 13.as fet forth at length. IS. PepsiCo 6wed a.duly 0 Cate:to Mr::A,odriguez to properly sraintatria_repair artfdlcr service. Yts egziipnrierit to. ensure tltat; such: egiiipmeit is to aondiion:lhiatuas: safe fog its ii3terrded and: use by -its busu ess. inAtees Onplowes, uz-Fpts;_ subeoritractt�irs reptesentatives_ 3 52433$7_v..9 16, PepsiCo also towed a fluty Hof care to Mr. Rodriguez to warn or provide-notice to its business vs mloees a gents; -tub con#rdctors an-or xepres.�en#a#fives _o# :t�angeious coriditioiis of its equprrient_ -or to: iren# .se a sul1 riangerousgtpment=b i#s eripo�ees; agents, subcontractors-and/or representatives. 17. PepsiCo breached its duty=of=e;owed to Mr. :RodriSuez in one.or nioto of4-he following ways: a Failug°10 properly�i l iii repair;-=dfar se mice the vnit- to ensure that the U- was in safe°condition:-for irifend6 .use by its employees, .agents, subcorttraztors, and/or representatives; b: Failing to prt peily repair a.dangeroiWy,detective condition of fihe.lznt diat at/mew tzr easQriably slouldl�:ave,°lcho created :an ui�reasoriable t7sk of. limn;to its`employees, agents;subconuutors amtd/oi represenfativ.es; e. Failuzg .to warn or provide notice. of ;A- 'd defective cons 04"e-Unit.that: crea#ed ari:?at3r e risk of"hami to.its employees;.agents; subcontractors-and/or representatives; d. Fa lingto use"due cane under the circumstances, 18. Pep siQo,'s -negligence was a direct= and,lsro�unate cause of.-r: Rodriguez's injuries, and as a.result:ofM_Roduguez's'in fury; Hartford pa d..workers' ;compensation benefits tinder$:50,0{0 0: �?VHERFfltE;-Flairitffderriands jndgment_against Defendant l?epsiCo for damages in an amount Hinder $ 0 000.00,X0944er with interest,-attOlteY's_Fees; costs of suit; acid such-uther relief the cWrt;rtij 4eem:appropr a#e. 6243287v.1 4 COUNT TWO—STRWt LIABILITY PJaizififf Xv ?epsiCo; 19.: Plaintiff incorporates the"allegaiozis contained iii the precediig paragraphs;as if set.-forth-at.length. 2£}; PepsiCo awned, designed as,::a.saphis#cated user,modified, installed; maintained, distt buted, sold, 'and/or manufactured the-subject Machine with a dangerous defect that.caused severe.electric-shock to indiyidual(s). Z 1.1 PepsiCo had custod y and-control of,th&-'subject:-Machine 'which had inadequate safety>equipment to Prevent shock-,-and/6r-andlcir lade of"a ra niiig of the damages to users of the subject in.achine. 2. The subject rriacliir►e's d4.gao. defectsve,caused:the Mr.-Rodriguez to be shacked poi which-Pep sicods strictly liable pursuant to sections 4fl2(kJ:aid X02($)of the ap'pl s bl6.-estateanent of Torts in: A) clesigrurg;installing;man iicturing},s&H— and distfibuting;the subject achite that defendant knew or:reasonably sYio0d bane.c3idwn subjected;plaiiiti f`to,, an uureasona�le risk of injury or'injury=; . b,) designmr g ..install-lhg;.manufactura g;sellir g atmd d stribdting-a.siefec#ve subject rt�acl ine when defendant kne r-or should 1aave icuovrrm tha#said`subject maehi ie Voitld-pose a threat of liddily.liarm'or inaury to users relying;tin yhe secun.t of. the-subiect machine; c) desig-W4&..�nstallz49,:inanufacturing,seiiing and isfr b iting-the subject-machine which when use'd for:its it#tended p'uz ase Was l' ely to pose al t x of bodily a ar injury to:users relpizig un.hie ecuraty of!e sul}ject zriac ne; nm epresenting.'e uses and attrtbufds of the subject rnac ine upon which °iriisrpreseritatior�s plaintiff iel2ed#zj his' 3ti�naeirt; e) ; ellsng,mnstailing arid_-Ai lbiat og-ibe b`, naaelnn0�3iithinstructions and wa ungs ghat de endarit'knew`�ar reasonably should =e lcn w�i were i gr pers ad 2atsbmadoc u u �ected plLi � o b uhreasbnable risk,oftajuiy or inju3, f.) desi9MI49,install"u2g;inai a€actui n9,selling and distributing the subjectmachine in a dangerously siefecnve condition that posed an unreasonable risk of-injury or .AWN g= iieing,�nstlrnp rYanuf �ttzrg,isellang and dstnbating the$obje-t-' aclne w#h inadequate ci=pon mt parts which-defendan t'knem or should have known subje40 plaitlt fffo-an unreasonable xisk;gf injury or; V IO ,TION:;.. Y V�rif�.tit the`;statelrnts bade ins Ctm Iaintree amd ton ect3e best saf m �oR�e1 e end 3' �d tase statnaentsaderen retest t penalties of.7. 1$ PA -C�J. tx�ben t G243287v:1 CERTIF CA'I'E Q�'S VICE Hobert:F Iorn�i reb thaf a#rUe:and correct copy of the Qregol)g-Pla of$' Complaint was segued v :regr mail on tleth;siay.of=IVlay 20l 0iie 'ollovag nouiisel -of-record: PEP O,INC. - 1511 fayeitevvil1E Si.;Box 1 11 Rateigh TC 27b0..1. `: obert F Hdin,lsgtx�e Nted: Miy,27;.2D10 62432OxJ FILED-OFFICC CF THE PROTHONOTARY 2010 HO's 2.4 PN. 15 I CUMBERLAND COUNTY PENNSYLVANIA To the herein parties you are hereby notified to plead to the enclosed Answer and New Matter within twenty(20)days of service thereof or a default judgment may be entered against you. 4r„'-"+"'X. Ste, &14-4& Attorney for Defendant NAULTY, SCARICAMAZZA & MCDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 .John F. Kennedy Boulevard One Penn Center, Suite 750 Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR DEFENDANT HARTFORD ACCIDENT AND INDEMNITY ; COURT OF COMMON PLEAS INSURANCE CO., as subrogee of MCGINLEY CUMBERLAND COUNTY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ NO. 10-1951 VS I s PEPSICO, INC. d/b/a..PEPSI.COLA:NORTH AMERICA ANSWER AND NEW MATTER OF DEFENDANT, PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA- TO PLAINTIFFS' COMPLAINT 1. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 1 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 2. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 2 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 3. It is admitted that Answering Defendant did lease a distribution facility in Cumberland County at 1301 Distribution Drive, Carlisle, PA. The remaining allegations contained in Paragraph 3 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 4. Denied. The allegations contained in Paragraph 4 of Plaintiffs' Com EXHIBIT conclusions of law to which no further response is required. 5. Jurisdiction is acknowledged. 6. Venue is acknowledged. 7. Denied. The allegations contained in Paragraph 7 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. 8. Denied. The allegations contained in Paragraph 8 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, and to the extent that a response is required, it is specifically denied that Answering Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America,owned or maintained the"subject machine"in question.As to the remaining averments contained in Paragraph 8 of Plaintiffs'Complaint,Answering Defendant is without sufficient knowledge to form a belief as to the truth or accuracy of same and, therefore,these averments are denied and strict proof thereof is demanded. 9. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 9 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 10. Denied. The allegations contained in Paragraph 10 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant acted negligently and/or that Answering Defendant maintained the machine in question. The remaining allegations contained in Paragraph 10 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 11. Upon information and belief admitted. - 12. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in Paragraph 12 of Plaintiffs' Complaint and, therefore, these averments are denied and strict proof thereof demanded. 13. Denied. The allegations contained in Paragraph 13 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. COUNT ONE 14. Answering Defendant hereby incorporates by reference its answers to Paragraphs 1 through 13 of Plaintiffs' Complaint as if same were fully set forth at.length herein. -- 2-- 15. Denied. The allegations contained in Paragraph 15 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, the equipment in question was neither owned, maintained, repaired or serviced by Answering Defendant. The remaining allegations contained in Paragraph 15 of Plaintiffs' Complaint are denied and strict proof thereof demanded. 16. Denied. The allegations contained in Paragraph 16 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant had notice or knowledge of any"dangerous or defective condition"of the equipment in question. The equipment in question was serviced and maintained by independent third parties and not by Answering Defendant. 17. Denied. The allegations contained in Paragraph 17 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant breached any duty of care owed to Mr. Rodriguez. Moreover, it is denied that Answering Defendant: a. failed to properly maintain, repair and/or service the Unit to ensure that the Unit was in safe condition for intended use by its employees, agents, subcontractors and/or representatives; b. failed to properly repair a dangerously defective condition of the Unit that it knew or reasonably should have known created an unreasonable risk of harm to its employees, agents, subcontractors and/or representatives; C. failed to warn or provide notice of a dangerously defective condition of the Unit that created an unreasonable risk of harm to its employees, agents, subcontractors and/or representatives; d. failed to use due care under the circumstances. On the contrary,at all times material hereto,Answering Defendant acted with due and proper care under the circumstances. 18. Denied. The allegations contained in Paragraph 18 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant acted negligently and/or that said negligence was a direct and proximate cause of the alleged injuries or damages of William Rodriguez. -- 3 -- COUNT TWO 19. Answering Defendant hereby incorporates by reference its answers to Paragraphs 1 through 18 of Plaintiffs' Complaint as if same were fully set forth at length herein. 20. Denied. The allegations contained in Paragraph 20 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant either owned or designed as a sophisticated user, modified, installed, maintained, distributed, sold or manufactured the subject machine. It is denied that Answering Defendant had any notice or knowledge of,any alleged defect on the machine at any time prior to Plaintiff's accident. 21. Denied. The allegations contained in Paragraph 21 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant,while acknowledging that the machine was at its premises, denies that it had custody and control" as alleged by Plaintiffs. Further, it is denied that Answering Defendant was aware of any"inadequate safety equipment"for the subject machine. 22. Denied. The allegations contained in Paragraph 22 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required,it is specifically denied that there existed any dangerous or defective machine of which Answering Defendant was knowledgeable. It is further denied that Answering Defendant is "strictly liable" to the Plaintiffs. Furthermore, it is denied that Answering.Defendant is liable in: a.) designing,installing,manufacturing,selling or distributing the subject machine that defendant knew or reasonably should have known subjected plaintiff to an unreasonable risk of injury or injury; b.) designing,installing,manufacturing,selling or distributing a defective subject machine when defendant knew or should have known that said subject machine would pose a threat of bodily harm or injury to users relying on the security of the subject machine; C.) designing, installing, manufacturing, selling or distributing the subject machine which when used for its intended purpose was likely to pose a threat of bodily harm or injury to users relying on the security of the subject machine; d.) misrepresenting the uses and attributes of the subject machine upon which misrepresentations plaintiff relied to his detriment; -- 4 -- e.) selling, installing or distributing the subject machine with instructions and warnings that defendant knew or reasonably should have known.were improper, inadequate and that subjected plaintiff to an unreasonable risk of injury or injury; f.) designing, installing, manufacturing, selling or distributing the subject machine in a dangerously defective condition that posed an unreasonable risk of injury or injury; g.) designing, installing, manufacturing, selling or distributing the subject machine with inadequate component parts which defendant knew or should have known subjected plaintiff to an unreasonable risk of injury or injury; h.) designing, manufacturing, selling, installing and distributing the subject machine that was not safe for all reasonably foreseeable uses; and i.) failing to properly guard the user from bodily injury or injury resulting from a defect of the subject machine. On the contrary, at all times material hereto,Answering Defendant acted with due and proper care under the circumstances. 24. Denied. The allegations contained in Paragraph 24 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required under the Pennsylvania Rules of Civil Procedure. However, to the extent that a response is required,Answering Defendant is without sufficient knowledge to form a belief as to the truth or accuracy of same and, therefore, these averments are denied i and strict proof thereof is demanded. 25. Denied. The allegations contained in Paragraph 25 of Plaintiffs' Complaint constitute conclusions of law to which no further response is required. However, to the extent that a response is required, it is specifically denied that Answering Defendant was aware of any dangerous or defective condition of the subject machine and/or that is directly and/or proximately liable to the Plaintiffs due to same. WHEREFORE, Answering Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby demands judgment in its favor and against Plaintiffs, Hartford Accident and Indemnity Insurance Co., as subrogee of McGinley Maintenance, Inc. and/or William Rodriguez, together with costs of suit including reasonable attorney's fees if allowed by law. -- S -- NAULTY, SCARICAMAZZA& MCDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard One Penn Center, Suite 750 Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR DEFENDANT HARTFORD ACCIDENT AND INDEMNITY ; COURT OF COMMON PLEAS INSURANCE CO., as subrogee of MCGINLEY CUMBERLAND COUNTY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ 1 NO. 10-1951 VS PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA CERTIFICATE OF SERVICE I, Gerard X. Smith, Esquire, hereby certify that I served a copy of the foregoing Answer and New Matter to Plaintiffs' Complaint via U.S. Mail, First Class, postage prepaid, addressed as follows: Robert F. Horn, Esquire White&Williams; LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Attorney for Defendant -- 8 -- —I LE UFFiCE ter^ {{:F �M1GT '! 0 (� I„•t' i f t.. i?liJ 1 rt�.b�0 i1-Ar�Y )i ! MFR -4 N 1: 47 C`j<�HRLAND COUNTY P E NON S Y LVA H11 A To the herein parties:you are hereby notified to plead to the enclosed Joinder Complaint within twenty(20)days of service thereof or a default judgment may be entered against you. Attorney for Defendant NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR DEFENDANT PepsiCo., Inc.d/b/a Pepsi Cola North America HARTFORD ACCIDENT AND INDEMNITY i COURT OF COMMON PLEAS INSURANCE CO., AS SUBROGEE OF CUMBERLAND COUNTY MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ NO. 10-1951 V. ' PEPSICO., INC. D/B/A PEPSI COLA NORTH ; AMERICA V. ' LANTECH.COM, LLC AND XPEDX DEFENDANT PEPSICO., INC. d/b/a PEPSI COLA NORTH AMERICA JOINDER,COMPLAINT AGAINST LANTECH.COM, LLC AND XPEDX Defendant,PepsiCo., Inc.d/b/a Pepsi Cola North America(hereinafter,"PepsiCo."), byand through its attorneys. Naulty, Scaricamazza & McDevitt, LLC hereby files Defendant's Complaint against the Additional Defendants Lantech.com, LLC (hereinafter, "Lantech") and Xpedx, and avers as follows: 1. Plaintiff Hartford Accident and Indemnity Insurance Company (hereinafter, "Hartford") EXHIBIT initiated this action via Writ of Summons. Plaintiff thereafter filed a Complaint filed on or about May 28, 2010. (A true and correct copy of said Complaint has been attached hereto and marked as Exhibit "A'J. 2. Said Complaint was served on Defendant on or about June 1, 2010. 3. Defendant PepsiCo. filed its Answer and New Matter to Plaintiff's Complaint with this Honorable Court on or about November 24, 2010. (A true and correct copy of said Answer has been attached hereto and marked as Exhibit "B"). 4. This lawsuit is a subrogation action stemming from an incident occurring on March 21, 2008 when William Rodriguez, an employee of McGinley Maintenance, Inc., was allegedly injured by an electrical shock he received while stretch wrapping pallets at Defendant's facility in Carlisle, PA. (See Exhibit "A"). 5. As a result of said accident, Plaintiff, Hartford, McGinley's worker's compensation insurance carrier, has paid in excess of $30,000 in medical and indemnity benefits to Mr. Rodriguez for his alleged injuries. Hartford now seeks reimbursement from Defendant for said moneys. 6. It is believed, and therefore averred, that the accident was caused by static electricity while William Rodriguez was using a Q300 Lantech stretch wrapper. 7. Lantech.com manufactured and/or installed the stretch wrapper in question. In the aftermath of the accident on August 20, 2008, Lantech inspected the stretch wrapper and found that the ground between the roll carriage and the machine frame work was poor and the grounding points were covered with powder coat. Lantech also installed a static eliminator to assist in dissipating the static. (A true and correct copy of the Lantech Service Log has been attached hereto and marked as Exhibit "C"). 8. Prior to March 21, 2008, Defendant PepsiCo. entered into a Planned Maintenance Service Agreement with Proposed Additional Defendant Xpedx. Pursuant to said Agreement,Xpedx was to provide maintenance to certain equipment, including the stretch wrapper in question. (A true and correct copy of the Planned Maintenance Service Agreement has been attached hereto and marked as Exhibit "D") 9. Defendant avers that the incident in question was not due to the negligence of Defendant, but to the negligent manufacture, installation and/or maintenance of the stretch wrapper in question. 10. The alleged incident referred to in Plaintiff's Complaint,the facts of which Defendant denies, -- 2 -- if determined to actually have occurred,was not the result of lack of due care or negligence on the part of Defendant PepsiCo., but was due to the negligence on the part of the Additional Defendants in the manufacture, installation and/or maintenance of the stretch wrapper. 11. It is believed,and therefore averred,that proposed Additional Defendant, Lantech.com,LLC is a Kentucky business entity and/or association duly authorized to do business within the state of Pennsylvania, with a place of business located 11000 Bluegrass Parkway, Louisville, Kentucky 40299. 12. It is believed, and therefore averred, that proposed Additional Defendant, Xpedx is a business entity and/or association duly organized to do business within the state of Pennsylvania, with a place of business located at 221 B South 10th Street in Lemoyne, Pennsylvania 17043., 13. Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America,joins the Additional Defendants, Lantech.com, LLC and Xpedx., to protect its right to contribution in the event it is determined that the Defendant and Additional Defendants are jointly and severally liable to the Plaintiff, or liable over to the Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America, the existence of any liability on the part of Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America herein being expressly denied. COUNT I - NEGLIGENCE Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendants Lantech.com, LLC and Xpedx 14. Defendant, PepsiCo., Inc.d/b/a Pepsi Cola North America,hereby incorporates by reference its allegations contained in paragraphs one through thirteen as if same were more fully set forth at length herein. 15. As a sole, direct and proximate result of the carelessness and/or negligence on behalf of Additional Defendants Lantech.com, LLC and Xpedx, the stretch wrapper in question was caused to malfunction and not operate properly. 16. The negligence and carelessness of Additional Defendants consisted of the following: a) Failing to properly manufacture, install, and or maintain the stretch wrapper Unit; b) Failing to properly maintain, repair,and/or service the stretch wrapper Unit to ensure -- 3 -- that the Unit was in safe condition for intended use; C) Failing to properly repaira dangerously defective condition of the stretch wrapper Unit that they knew or reasonable should have known created and unreasonable risk of harm; d) Failing to warn or provide notice of a dangerously defective condition of the stretch wrapper Unit that created an unreasonable risk of harm; e) Failing to properly ground the stretch wrapper Unit; f) Failing to properly clean and/or maintain the grounding points of the machine; g) Failing to install and maintain a static eliminator kit or other device to guard against the danger of static electricity; and h) Failing to use all due care under the circumstances. 17. In the event the allegations in Plaintiff's Complaint are proven at trial, then Additional Defendants are solely liable to the Plaintiff, jointly and severally liable with Defendant, or liable over to Defendant, in contribution and/or indemnity for the causes of action set forth in the Complaint and/or the causes of action set forth above. WHEREFORE,Defendant, PepsiCo., Inc.d/b/a Pepsi Cola North America,demands that Additional Defendants, Lantech.com, LLC and Xpedx, be judged solely liable to the Plaintiff for the cause of action set forth in the Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. COUNT 11 - PRODUCTS LIABILITY § 402(a) Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendant Lantech.com, LLC 18. Defendant, PepsiCo., Inc d/b/a Pepsi Cola North America, hereby incorporates by reference its allegations contained in paragraphs one through seventeen as if same were more fully set forth at length herein. 19. At all times relevant hereto, the aforesaid dangers and/or defective product was -- 4 -- manufactured, sold, distributed, installed and/or serviced by Additional Defendant, Lantech.com, LLC,for the use of consumers. 20. The aforesaid product left the care, custody and control of Additional Defendant, Lantech.com, LLC, Inc., and was received by Defendant in essentially the same condition as when it left the Additional Defendant who knew or should have known that it was unreasonably dangerous to the consumer or user. 21. Since this product was unreasonably dangerous and/or defective pursuant to§402(a)of the Restatement(Second) of Torts, the Plaintiff's subrogor reportedly sustained personal injuries as set forth in the Complaint. WHEREFORE, Defendant, PepsiCo., Inc.d/b/a Pepsi Cola North America,demands that Additional Defendant, Lantech.com, LLC be judged solely liable to the Plaintiff for the cause of action set forth in the Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc.d/b/a Pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. COUNT III - BREACH OF WARRANTY Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendant Lantech.com, LLC and Xpedx 22. Defendant, PepsiCo., Inc.d/b/a Pepsi Cola North America,hereby incorporates by reference its allegations contained in paragraphs one through twenty-one as if same were more fully set forth at length herein. 23. At all times relevant hereto, proposed Additional Defendant Lantech.com, LLC , warranted either expressly and/or impliedly that the product in question would be fit for its intended use. 24. Proposed Additional Defendant, Lantech.com, LLC , violated its warranty, either expressed or implied, by furnishing and installing a product which was not fit for its intended purpose. 25. At all times relevant hereto, proposed Additional Defendant Xpedx, violated its warranty, either expressed or implied, by failing to perform its duties in accordance with the Planned Maintenance -- 5 -- Service Agreement. 26. As a direct and proximate result of the proposed Additional Defendants' breaches of warranty, Plaintiff's subrogor reportedly sustained personal injuries. 4- WHEREFORE,Defendant, PepsiCo., Inc.d/b/a Pepsi Cola North America,demands that Additional Defendants, Lantech.com, LLC and Xpedx be judged solely liable to the Plaintiff for the cause of action set forth in the Complaint or jointly and/or severally liable with Defendant,PepsiCo., Inc.d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. COUNT IV- BREACH OF CONTRACT Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America v. Additional Defendant Xpedx 27. Defendant, PepsiCo., Inc.d/b/a Pepsi Cola North America,hereby incorporates by reference its allegations contained in paragraphs one through twenty-six as if same were more fully set forth at length herein. 28. Prior to March 21, 2008, Defendant PepsiCo. entered into a Planned Maintenance Service Agreement with Proposed Additional Defendant Xpedx. Pursuant to said Agreement,Xpedx was to provide maintenance to certain equipment, including the stretch wrapper in question. 29. Pursuant to said Agreement, Xpedx was to provide maintenance to certain equipment, including the stretch wrapper in question. (See Exhibit "D'J. 30. Further, pursuant to said Agreement, Xpedx agreed to perform all work in accordance with the procedures and guidelines set forth in the Agreement. 31. Defendant, PepsiCo., Inc.d/b/a Pepsi Cola North America ,avers that Additional Defendant Xpedx failed to perform its obligations pursuant to the agreement. 32. As a result of Additional Defendant Xpedx's failure to perform its obligations pursuant to the agreement, Defendant PepsiCo. avers that Additional Defendant Xpedx breached that agreement and is liable to the Plaintiff, and/or original defendant, PepsiCo. for the causes of action set forth in Plaintiffs -- 6 -- Complaint. 33. In the event that Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America is held liable to the Plaintiff under the terms of the agreement in question, Additional Defendant Xpedx is liable to Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America for full indemnification and/or contribution. 34. Defendant PepsiCo.alleges pursuant to the agreement,Additional Defendant Xpedx is solely liable to the Plaintiff for the cause of actions set forth in the Complaint,jointly and/or severally liable with Defendant PepsiCo.for the cause of actions set forth in Plaintiff's Complaint or liable over to Defendant for contribution and/or indemnity for the cause of actions set forth in Plaintiffs Complaint. 35. Defendant PepsiCo.joins the Additional Defendant Xpedx,to protect its right to contribution in the event it is determined that the Defendant and Additional Defendant Xpedx is jointly and severely liable to the Plaintiff, or liable over to Defendant PepsiCo. WHEREFORE,Defendant, PepsiCo.,Inc.d/b/a Pepsi Cola North America,demands that Additional Defendant Xpedx be judged solely liable to the Plaintiff for the cause of action set forth in the Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, or liable over to Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America , for contribution and/or indemnity. COUNT V- INDEMNIFICATION/CONTRIBUTION Defendant, PepsiCo., Inc. d/b/a pepsi Cola North America v. Additional Defendant Lantech.com and Xpedx 36. Defendant,PepsiCo., Inc.d/b/a Pepsi Cola North America,hereby incorporates by reference its allegations contained in paragraphs one through thirty-five as if same were more fully set forth at length herein. 37. Defendant,PepsiCo., Inc.d/b/a Pepsi Cola North America,avers that Additional Defendants are liable to Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America for complete indemnification and/or contribution as to the cause of action set forth in Plaintiff's Complaint. WHEREFORE,Defendant, PepsiCo., Inc.d/b/a Pepsi Cola North America,demands that Additional Defendants, Lantech.com, LLC and Xpedx. be judged solely liable to the Plaintiff for the cause of action -- 7 -- set forth in the Complaint or jointly and/or severally liable with Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America or liable over to Defendant, PepsiCo., Inc. d/b/a pepsi Cola North America for contribution and/or indemnity, together with counsel fees and costs. NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: - GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America -- 8 -- VERIFICATION I, Gerard X. Smith, Esquire, attorney for the defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America, hereby verify that the facts set forth in the foregoing Joinder Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. l%� r GERARD X. SMITH, ESQUIRE, NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Identification Number: 40927 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 (215) 568-5116 ATTORNEY FOR DEFENDANT PepsiCo., Inc d/b/a Pepsi Cola North America HARTFORD ACCIDENT AND INDEMNITY COURT OF COMMON PLEAS INSURANCE CO., AS SUBROGEE OF CUMBERLAND COUNTY MCGINLEY MAINTENANCE, INC., AND/OR WILLIAM RODRIGUEZ NO. 10-1951 V. PEPSICO., INC. D/B/A PEPSI COLA NORTH AMERICA V. ' LANTECH.COM, LLC AND XPEDX CERTIFICATE OF SERVICE I, Gerard X. Smith, Esquire, hereby certify that, on the below date, I served a copy of the foregoing Joinder Complaint on all counsel of record via U.S. Mail, First Class, postage prepaid, addressed as follows: Robert F. Horn, Esquire White & Williams, LLP 1650 Market Street, Suite 1800 Philadelphia, PA 19103 NAULTY, SCARICAMAZZA & McDEVITT, LLC. BY: GERARD X. SMITH, ESQUIRE Attorney for Defendant, PepsiCo., Inc. d/b/a Pepsi Cola North America Date: 3 3'0 ' 1 f Neutral As of: December 17, 201 9:14 AM EST Liberty Mut. Ins. Co. v. Domtar Paper Co. Superior Court of Pennsylvania September 27. 2013, Decided-. September 27. 2013, Filed No. 1052 WDA 2012 Reporter: 2013 Pa. Super. LEXIS 2682: 2013 PA Super 262. 2013 WL 542_')850 cation Act, 77 Pa. Stat.Ann. §§ 1-2708. did not provide carriers with an independent cause of action against LIBERTY MUTUAL INSURANCE COMPANY, AS third patties whose alleged negligence caused a worker's SUBROGEE OF GEORGE LAWRENCE, Appellant v. injuries. DOMTAR PAPER CO. N% COMMERCIAL NET LEASE REALTY SERVICES, INC., AND COMMERCIAL NEI' Outcome LEASE REALTY TRUST. AND COMMERCIAL NET The judgment was affirmed. LEASE REALTY, INC.. AND NATIONAL RETAIL PROPERTIES, INC., AND NATIONAL RETAIL PROP- I LexisNexis@ Headnotes PROP- ERTIES TRUST, Appellees Civil Procedure >...>Responses>1Xfense.s. Demurrers&Objec- Subsequent History: Rear-Urnent denied by Liberty Mut. tions>Demurrers i: Dointar Payer: 2013 Pa. Beeper:LEXIS 3174(Pa. Super: Civil Procedure>Dismissal>Involuntary Dismissals>Appellate Re- Ct.. Alov. 22, 2013), view Civil Procedure >Appeals>Standards of Review >Questions of Prior History: [*I] Appeal from the Order of the Fact&Law Court of Common Pleas, Elk County, Civil Division. HNI An appellate court*s standard of review of .in or- No. C.P. 2011-485. 'Before FORNELLI. J. do-of the trial court overruling granting preliminary ob- jections in the nature of a demurrer is to determine Core Teens whether the trial court committed an error of law. When - Considering the appropriateness of a ruling on prelimi- t employer. il-ISUrcr, I preliminary objection. mutual. trial nary objections, the appellate court must apply the same court. workers' compensation, subrogate. party, cause of standard as the trial court. C action, filed, id. injured employee, third party, pat ini J subrogation rights. tortfeasor, payment. negligence, frers&Objec- = I I . 1� Civil Procedure >... >Respons-,s>Defenses. 1Xrnu decision. injury, claim. order, appeal, workers' tions>Demurrers compensation benefits. independent, liability, demurrer, Civil Procedure. > ... > Defenses. Demurrers & Objec- personal. carrier, rcvicw, third tions>Motions to Dismiss>Failure to State Claim E-vidence> Inferences&Presumptions>Inferences Case Sunintary HN2 Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When con- sidering preliminary object ions. all material facts set f4th Over-view in the challenged pleadings are admitted as true, as ISSUE: Whether the trial court en•ed in granting appel- well as all inference--,reasonably deducible therefrom.Pre- lee property owners* demurrer and dismissing appellant firninary objections which seek the dismissal of a cause carrier's subrogation action seeking to recover work-- of action should be sustained only in cases in which it is ers, compensaticW1 it benefits paid to an injured em- clear and free,from doubt that the pleader will be L111- ployec. HOLDINGS: [I]-That appellees did not file their able to prove facts legally sufficient to establish the right demurrer within 20 days after the complaint's filing to relief. If any doubt exists as to whether a demurrerc did not prevent the trial Court from considering it., be- should be sustained, it should be resolved in favor of over- cause appellant admitted it was not prejudiced by the fact rUliJJ13 the preliminary objections. that the demurrer was filed two days late; 121-The trial court properly dismissed the act ion because§ 319(77 Pa. Civil Procedure>...>Pleadines>Time Limitations>General Over- Stat. Ann. §671)of the Pennsylvania Workers' Compen- view H,N13 See Pa.R.CNR No. 1026(a). EXHIBIT ANN LONGO Page 2 of 7 2013 Pa. Super. LEXIS 2682. *1 Governments>Courts>Judicial Precedent tights upon rig through whom the insurer must work out his L. L-1 payment of the insurance. the insurer- being subrogated L_ r� HN4 The Superior Court of Pennsylvania is not bound to the rights of the insured payment being made.This t, U by decisions of the courts of common pleas. right of the insurer against such Other person is derived r, from the assured alone. and can be enforced in his right Civil Procedure,>...>Pleadings>Time Limitations>General Over- .1 view 11 Only. SUPPOrt Of this rule it is COMMonly said that Civil Procedure>Judicial Officers>Judges the xvron�,ful act is sin-le and indivisible and can give ,es>Discretionary Po ers rise to but one liability. HN5 Pa.R CP. No. 1026(a is not mandatory but permis- Insurance I—qw >Claim.Contract &Practice,Issues>Subroga- sive. The Pennsylvania Supreme Court has held that tion >Proper Parties late Pleadings may be filed if the opposite party is not Workers' Compensation K, SSDI >E_XCIUSiVity>Employees& Em- ployers prejudiced -aid Justice requires. Much must be left to the Workers' Compensation&SSDI >Third Party Actions>Subroga- discretion of the lower court. [ion Governments>Courts>Judicial Precedent HN11 Section 319 (77 Pa- Stat. Ann. §677)of the Penn- sylvania Workers* Compensation Act,77 Pa. Stat. Anti. HN6 Unpublished decisions of the Superior Court Of §§ 1-2708.is an CXCIUSiVe remedy,and for an employer or Pennsylvania are non-precedential. its insurer to enforce its subrogation rights. it must Pro- ceed in an action brought on behalf of the injured em- Civil Procedure>Appeals>Record on Appeal ployee in order to determine the liability of the third Civil Procedure>Appeals>Standards of Review >General Over- view party to the employee. If Such liability is determined.then the employer or its insurer may recover, Out Of an HN7 The appellate court may affirm the decision of the award to the injured employee. the amount it has [:)aid in trial court if it is Correct on any (11-01.111CIS. The Appel- workers compensation benefits. Section 319 does not late Court may affirm a trial court's decision on any provide employers with the ability to bring suit directly 'TrOUnds supportod by the record on appeal. against a third party. Cases have reinforced Pennsylvania Courts aversion to the splitting of causes of action be- Workers' Compensation &SSDI>Third Party Actions>Subroga- tween roo subrogors and SUbces, with the potential expo- tion -tire of c1cfendarits to Multiple liabilities. HN8 See 77 Pa Stat. Ann. s� 671. Workers' Compensation& SSDI >Exclusivity>Employees&Em- ployers Workers' Compensation &SSDI>Third Party Actions>Subroga- Workers* Compensation 8. SSDI >Third Party Actions>Subroga- lion tion Workers' Compensation& SSDI >Third Party Actions>Third HA'9 The Pennsylvania Supreme Court has examined § Party Liability 3 19 (77 Pa. Stat. Ann. § 671)of the Pennsylvania Work- ers'' Compensation Act. 77 Pa. Stat.Anti. §§ 1-2708, HN12 While workers' compensation is the exclusive rem- and has explained the subrogation rights to which an env- r: C., related injuries. when an employee-victim's injuries are ployer is entitled. as compared to the rights of the ern- the result of negligence b a third patty, 77 Pa, Stat. Ann. r' ployee. The right of action remains in the injured cm- y _!�a of the Pennsylvania Workers' Compensation Act. ployee; Suit is to be brought in his name; the employcr may appear as an additional party plaintiff-. as use- 77 Pa.Stat.Anti. §fi 1-2708,allows the employee to bring plaintiff, may intervene for the purpose of protection; ati action against that third party. The victim's cm- or he may notify the totifeasor of the fact of employ- C"- ployer then has the right of subrogation, so Ion as he ment and of the payments made or to be made. can show that lie was compelled to make payments to his employee by reason of the negligence of the third negligence Insurance Law >Claim.Contract &Practice Issues>Subroga- party. The action against the third Party tortfeasor Must tion>General Overview be brought by the injured employee. The workers' com- Insurance I.q,.xy >Claim,Contract&Practice Issues>Subroga- pensation insurance carrier has tio independent Cause lion>Proper Parties of action for indemnification by and contribution from Workers' Compensation &SSDI>Third Party Actions>Subroga- the negligent party who caused the insurance carrier to pay tion r. out benefits. The subrogation rights of L12L are the HN10 Where it has paid workers' compensation ben- sole and exclusive remedy against third party tortfea- efits, the employer's right of subrogation must be worked sors, i.e. the ernployce-victim must SUC, and the employ- Out thl-01.1011 all action brOL10111 in the name Of the in- er s carrier is subro­ated to the cinployee*s claim. jured employee, either by joining, the employer as a party plaintiff,or as a use plaintiff. The right of action is for Cbunsel: Robert F Horn.Exton, for Liberty Mutual, ap- one indivisible wrong, and this abides in the insured. Pe'1 ant ANN LONGO Page 3 of 7 2013 Pa. Super. LEXIS 2682. *1 Patricia E.Antezana. Pittsburgh, for Donitar. appellee. party has not Sued in his own right and is not a party to the SL1i(. Oil May [*3] 22, 20.12. the trial Court filed Nadia V Lazo. Pittsburgh, for National Retail Properties an order Sustaining Appellees' preliminary objections. Trust and National Retail Properties, Inc, appellees. Liberty Mutual then filed this appeal. Judges: BEFORE: SHOGAN. LAZARUS and MUS- On appeal, Liberty Mutual raises five issues for this MANNO, JJ. OPINION BY SHOGAN. J. Court's consideration: Opinion by: SHOGAN A. Whether the Preliminary Objections of [Appellees] should have been dismissed as un- timely, since there was no threshold evi- Opinion deuce of reasonable excuse for the untimely OPINION BY SHOGAN, J.: Filing,, a requirement to overcome untimell- [less so as to consider the Preliminary Objec- tions on the merits. Appellant. Liberty Mutual Insurance Company, IS SUbro- gee of George Lawrence ( Liberty Mutual.), appeals B. Whether the Lower Court erroneously re- from the May 22, 2012 order sustaining preliminary ob- lied on an unpublished Memorandum Opill- icctions in the nature of a demurwr filed by Corniner- ion in Sustaining the Preliminary Objections of vial Net Lease Realty Services, Inc.. Commercial Net [.Appellees]. Lease Realty Trust, Commercial Net Lease Realty, Inc., C. Whether [Liberty Mutual] has the abso- National Retail Properties, Inc., and National Retail 11.1te right to subrogation under Section 319 of Properties Trust (collectively Appellees ). On appeal, the Pennsylvania Workers' Compensation Liberty Mutual asserts, inter ilia. that it has ,in absolute Act for Workers` Compensation'benefits paid. right to subrogation under the Pennsylvania Workers' Compensation Act 1 for benefits paid to Mr. Lawrence D. Whether the Lower Court should have the Pennsylvania Su- 113- and that it is not to be denied its right because Mr. Law- pliod precedent of' rence did not sue Appellees.After careful review. we af- prenic Court rather than precedent of this Hon- firm. arable Court on the issue of the right (standing) to subrogation. The relevant factual backgrouild of this matter is largely E. Liberty [TALI[Lial] has the right to sue the undisputed. On December 13. 2009, Mr. Lawrence was employed by Schneider National, Inc. ( Schnci- tortfeasor as the SUbrogee.of George Lawrence, der ). Schneider carried a policy of workers' compensa- tion [*2] insurance with Liberty Mutual. While work- ing within the scope of his employment for Schneider,Mr. Lawrence injured his right knee after falling in a park- t: The standard of review we apply when reviewing a trial in- lot at Dorntar Paper Company in JolinsoribUrg. Penn- r, CQLJrt*1 Order granting preliminary objections ill the Sylvania. The Donitar Paper Conip-,tily is situated oil granting property alleged to be owned and maintained by Appel- lees. as follows:Mr.Lawrence made a claim for workers' compere- HN1. Our standard of review of an order of cation benefits,and Liberty Mutual paid$3 3,929.23 to Mr. Lawrence. the trial Court overrLdinc or granting prelinii- nary objections is to determine. -%--licther the Subsequently, Liberty Mutual designated itself a subro- trial court committed an error of law. When gee of Mr. Lawrence and sued Appellee- to recover the considering the appropriateness of a I'LifirIg amount it paid out as workers* compensation benefits On preliminary objections, the appellate court to Mr. Lawrence. Liberty Mutual's claim alleged negli- must apply the same standard as the trial Pence in Appellees maintimarice of the Donitar Paper court. Company property and asserted that negligence was HIV2 Preliminary objections in the nature of the cause of Mr. Lawrence's injuries. On February 13, a demurrer test the legal sufficiency of,'the 2012, Appellees filed preliminary objections in the na- complaint. When considering preliminary ob- ture of a demurwr to Liberty Mutual's complaint. In their jections, all material facts set forth in the preliminary objections,Appellees claimed that Liberty challenged pleadings are admitted as true, as Mutual's cause of action was barred because Pennsylva- well as all inferences reasonably deducible nia does not recognize an independent cause of action therefrom. Preliminary objections which seek by a workers' compensation insurer where the injured the dismissal of a cause of action should be Act of June 2. 19151 P.L.736.as amended, 77 P.S. IT 1-2708. ANN LONGO Page 4 of'7 2013 Pa. Super. LEXIS 2682, *4 sustained only in cases in which it is clear not prejudiced thereby, the Court finds that and free from doubt that the pleader will be the delay is de minimis, Ind, mcreover, if the unable to prove facts legally Sufficient to es- Court sustained [Liberty Mutual's] position. tablish the right to relief. If any doubt ex- the issue raised by [Appellees'] preliminary fists as to whether ,I demurrer should be SLIS- objections would simply [*7] be re-raised tained, it should be resolved in favor of oil judgment to the pleadings or a nonsuit.See overruling the preliminary objections. Goodrich Amrarn 2d Section 1026(a) :7. Feingold r Hendrzak. 2011 PA Super 34. 15 A.3d Order, 05/22/12. 937.941 (Pa.Super. 2011)(qL]Otill.-Haun v. Com- munity Health Systems, Inc.. 2011 PA Super 15. 14 We agree with the trial court's resolution.Because we dis- A.3d 120, 123 (Pa. Super. 2011 cern no abuse of discretion by the trial Court.Liberty Mu- tual is entitled to no relief on this issue. III the first issue, Liberty Mutual ClOillIS the trial court abused its discretion in considering Appellees' pre- Next,Liberty Mutual claims that the trial court erred in re- linlinary objections because they were Untimely. Lib- lying on all unpublished Superior Court Memorandum in sustaining the preliminary objections.We agree that the erty Mutual's Brief at 9. W i r� We disagree. r� trial court should not have relied on the unpublished de- Pellyisylvania Rule of Civil Procedure 1026(a) provides, cision in Sentry Insumnce as Stibro-ee of Donald J. in relevant part, thatHN3 every pleading subsequent Reitman ),. Van DeKamp's, lice., et al..4 A.3d 669 (Pa. to the complaint shall be filed within twenty days after ser- Super. filed 2010) (Unpublished judgment order) as vice of the preceding pleading. Pa.R.CivP. 1026(a). HN6 unpublished decisions of this Court are non- Here. Liberty Mutual's Complaint was filed on January precedential. See Superior Court Internal Operating Pro- 19. 2012. Pursuant to Rule 1026(a). Al:)pcllces were re- cedure§ 6537: 210 Pa.CcVe § 65.37 However, the Un- quirc,d to file their preliminary objections on or before published decision in Sentry Insurance was based on our February 8, 2012, but they did not do SO until February published opinion in Reliance Insurance Co. r. Rich- 10, 2012. Thus, Liberty Mutual claims that the prelinji- mood Machine Co..309 Pa.Super.430.455 A.2d 686(Pa. nary objections should have been denied with prCJU- Super. 1983). which was also relied upon by the trial dice. Liberty Mutual's Brief at 8. court. It is well settled that HN7 this Court may affirm the decision of the trial Court if it is correct on any While Liberty Mutual cites to two common pleas court ,rounds. See Lilliqtdsl v. Copes-Vitleart, hic., 2011 cases finding prelitninary objections waived when they PA Super 102, 21 A.3d 12 3, 1235 (Pa. Super. 2011 were filed over a month late. Liberty Mutual fails 10 ['g] (staling that an appellate court may affirm a trial cite to any authority binding on this Court. 2 See Alder- court's decision on any grounds supported by the record woods (Pennsvh,arzia), lire. n. Duquesne Light Co,, on appeal).Accordingly.we will proceed With Out'an'aly- 2012 PA Super 153.52 A.3d 347, 351 n.I (Pa. Super. qis of the remaining issues raised on appeal. 2012) (reiterating thatHIV4 the Superior Court is not Liberty Mutual asserts that it has the right to SUbroaa- bound by decisions of the courts of common pleas). The W right Pennsylvania Supreme Court has interpreted Rule lion under the Pennsylvania Workers* Compensation Act 1026(a) as follows: HN5 This rule [`6] is not manda- for benefits paid to Mr. La-INT011M that it has the right as SUbrogee to independently sue the tonfeasor, and that tort' but permissive. W We have held that late pleadings tile trial court erred.in not Following Supreme Court may be filed if the opposite party is not prejudiced and jUS-._ r., tice requires. Much must be left to the discretion of the precedent. After careful review. we conclude that Lib- lower court. Peters Creek Sanitary Authority r. Welch. city MUILI,. is not entitled to relief. 545 Pa.309. 681 A2d 167. 170(Pa. 4996)(internal quo- Section 319 of the Pennsylvania 'A"orkers' Compensation tat ion marks and citation omitted). Act, which is codified at 77 P.S. .4 671, states, in rel- Here, Liberty Mutual admits there was no prejudice, and evant part. as follows: Appellees' preliminary objections were only two days HYS Subrogation of employer to rights of em- late. The trial court disposed of this issue stating: r, ployce against third persons; subrogation of [Liberty Mutual'-.] preliminary objections to cmploycr or insurer to amount paid prior to [Appellees'] preliminary objections oil the award basis that they were unti.mely-.to wit,two days Where the compensable injury is caused in late, and [Liberty Mutual] admitting it is whole or in part by the act oi• omission of a 2 Rekdless, neither of the two cases cited by Liberty Mutual, r.Alside, lire.. 37 Pa. D.&C.3d 430(Pa. Com. Pl. 1984)or Laser Eye Institute, Inc. Y. Schulman.2002 Plliia. Ct.'Corn. Pl. LEXIS 83,2002 WL 377660(Pa. Com. P1, 2002), stand tor the proposition that an untimely-filed preliminary objection results in automatic waiver of the objection,; raised in the filing, ANN LONGO Page 5 of 7 20131 Pa. Super. LEXIS 2682., *8 third party, the employer shall be subrogated Id. (emphasis added). to the right of the employe, his personal rep- resentative, his estate or his dependents. The Supreme Court thus rejected the defendants' posi- against such third party to the extent of the tion and held that the wife of the deceased employee re- compensation payable under this article by the tained the right to sue. Id. In its discussion, however, employer: reasonable attorney's fees and the Scalise Court also made the statement that the cm- other ['�9] proper disbursements incurred in ployer is not to be denied his right of suit because the em- obtaining a recovery or in effecting a com- ployce does riot sue, but may institute F*111 the action promise settlement shall be prorated between in the latters name. Id. It is this language upon which the employer and employe.his personal rep- Liberty Mutual relies in arguing that it may indepen- resentative, his estate or his dependerits. The dent ly sue Appellees pursuant to section 319. employer shall pay that proportion of the at- After careful review of the law in this area. we are con- torney*s fees and other proper disbursements strained to reject Liberty Mutual's position.' First of that the amount of compensation paid or pay- all, Scalise did not hold that the Workers' Compensation able at the time of recovery or settlement bears Act provides insurers with the ability to independently to the total recovery or settlement. Any re- sue third-party tortfeasors. It held that the right of action covcry against such third person in excess of the compensat ion theretofore paid by the em- remained with the injured employee. Secondly. al- though the referenced statement in Scalise is somewhat ployer shall be paid forthwith to the em- though cases decided since Scalise have clarified that ploye, his personal representative. his estate C workers' compensation c or his dependents and shall be treated as an cart ier s do not have an indepen- ,. dent cause of action. advance payment by the employer on ac- Count of any future instalments of' In a case decided only five years after Scalise, this compensation. Court set forth the rationale for such a position and em- phasized the importance of a unified cause of action. 77 P.S. §671 (internal footnote omitted). In Moltz, to Use of Royal Indemnity Co. v. Sherwood Ri-os. Inc.. 116 Pa. Super. 23 1, 176 A. 942 (Pa. Super. Liberty Mutual relies on Scalise n E M. Venzfe R. Co., 1129335), the injured employee successfully recovered from 301 Pa. 315. 152 A. 90 (Pa. 1930) in n-at-ui that it arguing the toi• fcqsor. The workers' compensation carrier subse- has the right to independently sue Appellees Pursuant to r, quently sued the tort-feasor for the amount paid to the em- section 319. In Scalise, an employee died while in the ployce,in benefits.Although the claim was bat-red by scope of his employment.The deceased employee's wife, the two-year statute of limitations.the [x12] Moltz Ccxi•t who received workmen's compensation benefits, filed also C011CILIClod th-,d the employer's fight of subrogation suit against the third parties who were responsible for the must be asserted through an action brought in the name of accident Leading to her husband's death. Id. at 9 1. C41 1= - the insured. As explained by the Court: [*10] The defendants claimed that the employee's wife had no cause of action, arguing that any cause of ae- L_ Z' HMO The employer's must be worked rog d right of subrogation lion was vested solely in the employer as Wbrogee. Id. C L_ Out dircu-i an action brought at 92. in the name of the injured employee, either by joining the cilipfc)yer as a party plaintiff . . HN9 The Supreme COL111 examined section 319 and ex- plain0d the subrogation rights to which an employer is or as a use plaintiff . . . The right of ac- entitled. as compared to the rights of the employee. The (ion is for one indivisible wronsi. and this abides in the insured.through whom the in- Court Concluded that: t' surer must work out his 60111S upon payment of the insurance• the insurer beinu subro- 'Phe tight of action remains in the injured gated to (fie rights of the insured upon pay- employee; suit is to be brOU011t in his t, t, t, meat being made[. . . .] This right of the in- name; the employer may appear as an addi- SUret, against Such other person is derived tional party plaintiff, as in Gentile n Phila.& from the assured alone. and can be enforced Reading Ry. 274 Pa. 335,-118 A. 223 in his right only . . . .] In support of this H 9221: or, as useplaintiff, as in Mayhugh v. rule it is commonly said that the wrongful Somerset Telephone CoJ. 265 Pa. 496, act is single and indivisible and can give rise 109A. 213(1920)1, may intervene for the pur- to but one liability. pose of protection or he may do as sug- gested in Smith. ),. Yellow Cab. Co.F, 288 Pa. Holtz. 176 A. at 843 (internal quotation marks omit- 85, 135 A. 859 (1927)1, notify the totifea- red). sor of the fact of employment and of the pay- ments made or to be made. Relying in part on Holtz, this Court in Reliance, the case ultimately relied upon by the trial court in the case ANN LONGO R-we 6 of 7 2,013 Pa. Super. LEXIS 2682, *12 sub judice, specifically refused to construe section 319 mine the liability of the third party to the em- as providing m employer or insurer With a Cause Of ac- ploye-c. If such liability is determined, then tion in its own right. By way [313] of background, tile e111plOy0r Or its insurer may recover.out of the employee in Reliance was injured in the scope-Of an award to the injured employee. the his emplo-yinent on April 4, 1977. Reliance. 455 A.2d at amount it has paid in worker's compensation 687. On April 11, 1977, the insurance company began benefits, making workers' COMPOnSatiOn Pa,yMCIUS to the injured employee. Id. On May 16. 1979, more than two years af- Id. 4 ter both the injury and the commencement of payment of" workers' compensation nsation benefits, the insurance coni- In sunimm-y. section 3 19 does not provide employers pan), filed a Writ of summons against the allegedly ncgli- gent third party defendants.A complaint was filed on Au- with the ability to bring suit directly against a third party. I C r, gust 3, 1979. Id. at 688. The insurer sought to recover Cases decided since Scalise, in particular Reliance. the amount It paid in workers' compensation benefits to have reinforced Pennsylvania courts• aversion to the split- the employee from the third parties. Id. tino of causes Of action between SUbrogors and subro- t� - gees, with the potential exposure of defendants to 11IL11- Prior to a final order in that case,a panel of this Court ad- tiple liabilities. As reiterated by this Court in Whirley, dressed an interlocutory appeal by permission pursuant Industries Inc. iJ Se,-,el. 316 Pa. Super. 75.462 A.2d to 42 Pa.C.S.A. § 702(b).In that appeal by permission,the 800(Pa. Super. 1983), trial Court certified three questions to this Court-. HN12 While Workers* Compensation is the (1) If the employer (or its insurer) may main- exclusive remedy of an employee against his Lain an action for contribution and/or indem- employer for work-relatod injuries, when nity, Should the two year statute of limita- an employee-victim*s injuries are the result bons on personal injury actions, apply to such Of negligence by a third party, § 6a of the a cause of action? Work-crs' Compensation Act allows the em- ployee to bring an action against that third (2) Is the right of subrogation granted to an t� t, k, r, party. The victim's employer then has the employer by section 319 of the Workmen's tight of subrogation. so long as he can --,how Compensation Act (77 P.S. §671) against that he was compelled to make payments to U*141 alleged third-party tortfe.isors respon- Z__ his employee by reason of the negligence of sible for injuries to an employee the eXClU- the third party. Dale Manufactadfrigrc.o. V. sive remedy by which the employer (or its in- Workmen's Compensation Appeal Roamk.34 surer) ma-y recover the sums it paid in Pa. Conm1w. 31, 382 A.2d 1156 (Pa. Cm= -%vorknien's compensation benefits to the in- with. 1978). [*16]affd491 Pa.493, 421 A.2d jured employee? !6_53198�0, Reaj-,qulnent denied(1980). (3) Does an employer (or its insurer) have a The action against the third party torff,ea- common law right of action for indemnity t_1 scir must be brought by the injured em- and/or contribution against the third party ployee. Our Court has recently field that the whose negligence allegedly caused injury to � Workers' COMIXIISati011 insurance carrier the employee? has no independent cause of act ion for indem- nification by and contribution frO111 the ne- Reliance.455 A.2d at 687. Upon review, this ligent party who caused the insurance car- Court concluded that the two-year statute oflimita- ri er to pay out benefits.The subrogation rights Lions applied, and the CIIIPIOyel-AIISUrer tort action of §671 are the sole and exclusive remedy was barred. Id. at 690. However. the panel in Reli- against third party tortfeasors, i.e. the em- ance also field that the insurer/employer had no ployec-victim must sue, and the employ- cause of action in its own right, as follows: EX'S C'arrier is subrog ated to the employee's claim. Reliance Insurance Company r. Rich- We therefore hold(hatHN11 section 319 is an mond Machine Company, Reliance Elec- exclusive remedy. and that for an employer trfc Company,and Rendix Westinghom-w.309 Or US insurer to enforce its subrogation rights. Pa Su[2cr. 430. 455 A.2d 686 (Pa. Super. it must procced in an action brought on be- 1983). half Of tile injured employee in order to deter- We renumbered the iSSLICS for purposes of [11-fl our discussion. 4 We note that an employer or insurer may also intervene to protect its subrogation rights.See. e.g.. Hankee r. Wilkes Barrel Scranton Int-7 Airport.532 Pa. 494.()16 A.2d 614 (Pa. 1992). ANN LONGO Page 7 of 7 2013 Pa. Super. LEXIS 2682, *16 111tirley Indushies Inc., 462A,2d at 802 (empha- Order affirmed. sis added and footnote omitted). Accordingly, wo'conclude that there was no error in the Judgment Enta-ed. trial court sustaining Appellces' preliminary objec- tions.Therefore, the order is affirmed. Date: 9/27/201 ANN LONGO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARTFORD ACCIDENT AND ARBITRATION DIVISION INDEMNITY INSURANCE COMPANY, as subrogee of McGINLEY No: 2010-01951 MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ, Plaintiff, MODIFICATION OF APPEARANCE V. PEPSICO, INC. d/b/a PEPSI COLA Filed on Behalf of:. Additional Defendant, NORTH AMERICA, XPEDX Defendant, Counsel of Record for this Party: V. DEAN F. FALAVOLITO, ESQUIRE PA ID #92844 LANTECH.COM, LLC and XPEDX, MARGOLIS EDELSTEIN Additional Defendants. 525 William Penn Place, Suite 3300 Pittsburgh, PA 15219 P: (412) 355-4938 F: (412) 642-2380 dfalavolito gmargolisedelstein.com mco r , C-) z w CD .mod (:)-n f7 X �!C Z C?1 t; WC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARTFORD ACCIDENT AND ARBITRATION DIVISION INDEMNITY INSURANCE CO., as subrogee of McGINLEY MAINTENANCE, No: 2010-01951 . INC., and/or WILLIAM RODRIGUEZ, Plaintiff, V. PEPSICO, INC. - d/b/a PEPSI COLA NORTH AMERICA, Defendant, V. LANTECH.COM, LLC and XPEDX, Additional Defendants. MODIFICATION OF APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY, PA PLEASE note that the undersigned counsel for Additional Defendant, Xpedx Dean F. Falavolito, Esquire is now at the firm of MARGOLIS EDELSTEIN at the address below: 525 William Penn Place—Suite 3300 Pittsburgh, PA 15219 P: 412-355-4938 F: 412-642-2380 Respectfully submitted, MARGOLIS EDELSTE DeadFWal o ito, Esquire Attorneys for Additional Defendant,Xpedx CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing MODIFICATION OF APPEARANCE has been served upon all parties by U.S. First Class Mail, postage prepaid, this 26'h day of December, 2013: James R. Murdaco, Esquire White and Williams, LLP 1650 Market Street—Suite 1800 Philadelphia, PA 19103 (Counsel for Plaintiff, Hartford Accident and Indemnity Insurance Company, as subrogee of McGinley Maintenance,Inc. and/or William Rodriguez) Ann L. Longo, Esquire Gerard X. Smith, Esquire Naulty, Scaricamazza& McDevitt, LLC 1617 John F. Kennedy Blvd. 750 One Penn Center Philadelphia, PA 19103 (Counsel for Defendant, Pepsico, Inc. d/b/a Pepsi Cola North America) Jeffrey B. Rettig, Esquire Law Offices Johnson Duffie 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (Counsel for Additional Defendant, Lantech.com, LLC) DeaOX4Falaviol lrto, Esqui C ( r PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) Motion for Summary Judgment c CAPTION OF CASE -or in (entire caption must be stated in full) : Hartford Accident & Indemnity Insurance Co. a/s/o ,mac -0 c vs. PepsiCo., Inc. et al. No. 1951 2010 Te m 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant PepsiCo.,Inc.d/b/a Pepsi Cola North America's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: James R. Murdaco, Esquire, White and Williams, LLP (Name and Address) 1650 Market Street, Suite 1800, Philadelphia, PA 19103 (b) for defendants: Ann L. Longo, Esquire/Gerard X. Smith, Esquire, Naulty, Scaricamazza&McDevitt, LLC (Name and Address) 1617 John F. Kennedy Blvd., Suite 750, Philadelphia, PA 19103 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 14,2014 ' I , Signature W A k)& . 1_40 Ai Print your name PepsiCo., Inc.d/b/a Pepsi Cola North America Date: 12/17/13 Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary)after the case is relisted. 1I9.isPCICI NC-4 7r)1110 WJames R.hite an Wiliams LLP e �0 4 J Ate l6 1650 Market Street 'Ut�B 41110. One Liberty Place, Suite 1800 pF �A J�p C ' Philadelphia, PA 19103 6 YL VA o ly r y 215-864-6377 murdacoj@whiteandwilliams.com HARTFORD ACCIDENT AND INDEMNITY COURT OF COMMON PLEAS INSURANCE COMPANY, as subrogee of CUMBERLAND COUNTY MCGINLEY MAINTENANCE, INC. and/or JURY TRIAL DEMANDED WILLIAM RODRIGUEZ Hartford Plaza CASE NO.: 2010-01951 Hartford CT 06115 Plaintiff, vs. ARBITRATION CASE PEPSICO,INC. 150 Fayetteville St., Box 1011 Raleigh NC 27601 Defendant. PLAINTIFF HARTFORD ACCIDENT AND INDEMNITY INSURANCE COMPANY A/S/O MCGINLEY MAINTENANCE AND/OR WILLIAM RODRIGUEZ'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT Plaintiff, Hartford Accident and Indemnity Insurance Company as subrogee of McGinley Maintenance and/or William Rodriguez (hereinafter "Hartford"), by and through its attorneys White and Williams LLP, hereby responds to the Motion for Summary Judgment filed by Defendant PepsiCo., Inc. d/b/a Pepsi Cola North America (hereinafter "PepsiCo.") and in support thereof avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 12827240v.1 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. Plaintiff has a statutory right confirmed by precedent to file suit directly against Defendant. 11. Denied. WHEREFORE Plaintiff, Hartford Accident and Indemnity Insurance Company as subrogee of McGinley Maintenance and/or William Rodriguez respectfully requests this Honorable Court to enter an order Denying PepsiCo.'s Motion for Summary Judgment. WHITE AND WILLIAMS LLP By: es M rdaco, Esquire I.D. No. PA 310855 Dated: O t S 2 a t 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 Telephone: (215) 864-6377 Facsimile: (215) 789-7638 murdacoj@whiteandwilliams.com Attorneys for Plaintiff 12827240v.1 MARGOLIS EDELSTEIN r �� 5 y ` BY: DEAN PA ID 2844 F. FALAVOLITO,ESQUIRE E�'t�1Fr 2 pfY 9 3,Jjo 525 William Penn Place—Suite 3300 ��� �YCVq QUNr}, Pittsburgh,PA 15219 N/A P: 412-355-4938 F: 412-642-2380 ATTORNEY FOR ADDITIONAL DEFENDANT, XPEDX COURT OF COMMON PLEAS HARTFORD ACCIDENT AND CUMBERLAND COUNTY INDEMNITY INSURANCE CO., as subrogee of McGINLEY MAINTENANCE, NO: 2010-01951 INC., and/or WILLIAM RODRIGUEZ, Plaintiff, V. PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA, Defendant, V. LANTECH.COM, LLC and XPEDX, Additional Defendants. MOTION TO JOIN DEFENDANT PEPSICO INC'S MOTION FOR SUMMARY JUDGMENT Defendant, Xpedx, by and through its undersigned counsel, Dean F. Falavolito, Esquire, files the following Motion to Join Defendant Pepsico Inc.'s Motion for Summary Judgment and in support thereof avers as follows: 1. On December 17, 2013 Defendant Pepsico Inc. ("Pepsico") filed a Motion for Summary Judgment. 2. Defendant Xpedx was only joined in this matter by Pepsico. 3. As the grounds asserted by dismissal of Pepsico apply equally to Xpedx, dismissal of Xpedx in this matter is equally appropriate. WHEREFORE, Defendant, Xpedx, respectfully request to join Pepsico, Inc.'s Motion for Summary Judgment is GRANTED and that Xpedx be DISMISSED from this case, with prejudice. Respectfully submitted, MARGOLIS EDELS E Dean F. Falavolito, Esquire Attorney for Additional Defendant,Xpedx IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARTFORD ACCIDENT AND CIVIL DIVISION INDEMNITY INSURANCE CO., as subrogee of McGINLEY MAINTENANCE, No: 2010-01951 INC., and/or WILLIAM RODRIGUEZ, Plaintiff, V. PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA, Defendant, V. LANTECH.COM, LLC and XPEDX, Additional Defendants. ORDER AND NOW this day of , 2014 upon consideration of Defendant Pepsico, Inc.'s Motion for Summary Judgment and Defendant Xpedx's Motion to Join Motion for Summary Judgment, and any and all responses thereto, it is GRANTED and all claims against xpedx are DISMISSED, with prejudice BY THE COURT: J. MARGOLIS EDELSTEIN BY: DEAN F. FALAVOLITO, ESQUIRE PA ID #92844 525 William Penn Place—Suite 3300 Pittsburgh,PA 15219 P: 412-355-4938 F: 412-642-2380 ATTORNEY FOR ADDITIONAL DEFENDANT,XPEDX COURT OF COMMON PLEAS HARTFORD ACCIDENT AND CUMBERLAND COUNTY INDEMNITY INSURANCE CO., as subrogee of McGINLEY MAINTENANCE, NO: 2010-01951 INC., and/or WILLIAM RODRIGUEZ, Plaintiff, V. PEPSICO, INC. d/b/a PEPSI COLA NORTH AMERICA, Defendant, V. LANTECH.COM, LLC and XPEDX, Additional Defendants. CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the foregoing MOTION TO JOIN DEFENDANT PEPSICO, INC.'S MOTION FOR SUMMARY JUDGMENT has been served upon all parties by U.S. First Class Mail,postage prepaid,this 23`d day of January 2014: James R. Murdaco,Esquire White and Williams,LLP 1650 Market Street—Suite 1800 Philadelphia,PA 19103 (Counsel for Plaintiff,Hartford Accident and Indemnity Insurance Company, as subrogee of McGinley Maintenance,Inc. and/or William Rodriguez) Ann L. Longo, Esquire Gerard X. Smith, Esquire Naulty, Scaricamazza& McDevitt, LLC 1617 John F. Kennedy Blvd. 750 One Penn Center Philadelphia, PA 19103 (Counsel for Defendant, Pepsico, Inc. d/b/a Pepsi Cola North America) Jeffrey B. Rettig, Esquire Law Offices Johnson Duffie 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (Counsel for Additional Defendant,Lantech.com, LLC) Dei&K Falavo ito, Esquir E: OF l F Y o James R. Murdaco, Esquire White and Williams, LLP 2914 FEB 14 p 3: 52 1650 Market Street �`.�,'��iB�'r�f.�; 'i3 COUNTY One Liberty Place, Suite 1800 PENNSYLVANIA Philadelphia, PA 19103 215-864-6377 murdacoj@whiteandwilliams.com HARTFORD ACCIDENT AND INDEMNITY : COURT OF COMMON PLEAS INSURANCE COMPANY, as subrogee of : CUMBERLAND COUNTY MCGINLEY MAINTENANCE, INC. and/or : JURY TRIAL DEMANDED WILLIAM RODRIGUEZ Hartford Plaza • CASE NO.: 2010-01951 Hartford CT 06115 • Plaintiff, vs. • ARBITRATION CASE • PEPSICO,INC. • 150 Fayetteville St., Box 1011 • Raleigh NC 27601 • Defendant. • PLAINTIFF HARTFORD ACCIDENT AND INDEMNITY INSURANCE COMPANY A/S/O MCGINLEY MAINTENANCE AND/OR WILLIAM RODRIGUEZ'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT Plaintiff, Hartford Accident and Indemnity Insurance Company as subrogee of McGinley Maintenance and/or William Rodriguez (hereinafter "Hartford"), by and through its attorney White and Williams LLP, hereby respond;, to the Motion for Summary Judgment filer' Defendant Xpedx. In response to this Motion for Summary Judgment Plaintiff incorporates by r, response to the Motion for Summary Judgment filed by Defendant PepsiCo, Ir Cola, North America. 12827240v.1 WHEREFORE Plaintiff, Hartford Accident and Indemnity Insurance Company as subrogee of McGinley Maintenance and/or William Rodriguez respectfully requests this Honorable Court to enter an order Denying Xpedx's Motion for Summary Judgment. WHITE AND WILLIAMS LLP By: /:.tame/2../%`' Murdaco, Esquire I.D. No. PA 310855 Dated: 0 2- Al— /2 " y 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 Telephone: (215) 864-6377 Facsimile: (215) 789-7638 murdacoj@whiteandwilliams.com Attorneys for Plaintiff 12827240x.1 James R. Murdaco, Esquire White and Williams, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 215-864-6377 murdacoj @whiteandwilliams.com HARTFORD ACCIDENT AND INDEMNITY : COURT OF COMMON PLEAS INSURANCE COMPANY, as subrogce of : CUMBERLAND COUNTY MCGINLEY MAINTENANCE, INC. and/or : JURY TRIAL DEMANDED WILLIAM RODRIGUEZ Hartford Plaza • CASE NO.: 2010-01951 • Hartford CT 06115 • • Plaintiff, • vs. • ARBITRATION CASE • • PEPSICO, INC. • 150 Fayetteville St., Box 1011 • Raleigh NC 27601 • • Defendant. PLAINTIFF HARTFORD ACCIDENT AND INDEMNITY INSURANCE COMPANY A/S/O MCGINLEY MAINTENANCE AND/OR WILLIAM RODRIGUEZ'S MEMORANDUM OF LAW IN SUPPORT OF RESPONSE TO MOTION FOR SUMMARY JUDGMENT Plaintiff', Hartford Accident and Indemnity Insurance Company as subrogee of McGinley Maintenance and/or William Rodriguez (hereinafter "Hartford"), by and through its attorneys White and Williams LLP, hereby files the instant Memorandum of Law in support of its Motion for Summary Judgment filed by Defendant Xpedx. In response to this Motion, Plaintiff incorporates by reference the Memorandum of Law in support of Plaintiffs Opposition to the Motion for Summary Judgment filed by Defendant PepsiCo, Inc. d/b/a Pepsi Cola North America. 12827240v.1 WHITE AND WILLIAMS LLP me ur aco, Esquire I.D. No. PA 310855 Dated: o 'Z /12 2 n 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 Telephone: (215) 864-6377 Facsimile: (215) 789-7638 murdacoj@whiteandwilliams.com Attorneys for Plaintiff 12827240x.1 VERIFICATION I, James R. Murdaco, Esquire, do hereby verify that I am an attorney for the Plaintiff in the foregoing action and that the facts set forth in the foregoing Motion and Memorandum in Support are true and correct to the best of my knowledge, information and belief I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsifications to authorities. JAMES R. MURDACO, ESQUIRE 12827240x.1 James R. Murdaco, Esquire White and Williams, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 215-864-6377 murdacoj@whiteandwilliams.com • HARTFORD ACCIDENT AND INDEMNITY : COURT OF COMMON PLEAS INSURANCE COMPANY, as subrogce of : CUMBERLAND COUNTY MCGINLEY MAINTENANCE, INC. and/or : JURY TRIAL DEMANDED WILLIAM RODRIGUEZ Hartford Plaza • CASE NO.: 2010-01951 • Hartford CT 06115 Plaintiff, vs. • ARBITRATION CASE PEPSICO, INC. • • 150 Fayetteville St., Box 1011 Raleigh NC 27601 • • Defendant. • CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within Response to Motion for Summary Judgment and Memorandum of Law in Support thereof was made on February 12, 2014 to the counsel named below, by electronic mail and First Class Mail: Ann L. Longo, Esquire Gerard X. Smith, Esquire Naulty Scaricamazza& McDevitt, LLC 1617 John F. Kennedy Boulevard 750 One Penn Center Philadelphia, PA 19103 alongo @naulty.com 12827240v.1 Jeffrey B. Rettig, Esquire Law Offices of Johnson Duffle 301 Market Street PO Box 109 Lemoyne, PA 17043 jbr @jdsw.com Dean F. Falavolito, Esquire Burns White Four Northshore Center 106 Isabella Street Pittsburgh, PA 15212 dffalavolito@burnswhite.com WHITE AND WILLIAMS LLP 3y: . Murdaco, Esquire Attorneys for Plaintiff 12827240x.1 Brett N. Tishler, Esquire White and Williams, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 215-864-6879 tishlerb@whiteandwilliams.com HARTFORD ACCIDENT AND INDEMNITY : INSURANCE COMPANY, as subrogee of MCGINLEY MAINTENANCE, INC. and/or WILLIAM RODRIGUEZ Plaintiff, vs. PEPSICO, INC. d/b/a PEPSI COLA NORTH : AMERICA Defendant, v. LANTECH.COM LLC and XPEDX Jf %/ ©FICC, D Pf?DTNO:_ TA r pEN�S �� 0 C©J�, 02 TY COURT OF COMMON PLEAS CUMBERLAND COUNTY JURY TRIAL DEMANDED CASE NO.: 2010-01951 ORDER TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above -captioned matter SETTLED, DISCONTINUED AND ENDED. Dated: 13963603v.1 7/L7 - By: WHITE AND WILLIAMS LLP Jam R. Murdaco, Esquire PA ID: 310855 Brett N. Tishler, Esquire PA ID: 202775 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 Telephone: (215) 864-6879 Attorneys for Plaintiff