Loading...
HomeMy WebLinkAbout01-0754JOHN J. SCHIETROMA, M.D. Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ESC SHARPLAN, a/k/a ESC MEDICAL SYSTEMS Defendant No.OI Civil Term NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 NOTIG A USTED HA SIDO DEMANDADA/A EN CORTE. Si usted desea defenderse de Fas demandas que se presentan mas adelante en las siguientes paginas, debe romar accion dentro de los proximos veinte (20) dias despues de Fa notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de romar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede set dictado en contra suya por la Code sin mas aviso adicional. Usted puede perrier dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTA DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SlGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 JOHN J. SCHIETROMA, M.D. Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ESC SHARPLAN, a/lEa ESC MEDICAL SYSTEMS Defendant Civil Term COMPLAINT 1. Plaintiff, JOHN J. SCHIETROMA, M,D., now is, and at all times mentioned was, practicing medicine and doing business in an office located at Pennview Place, 220 Grandview Avenue, Camp Hill, East Pennsboro Township, Cumberland County, Pennsylvania. 2. Defendant, ESC SHARPLAN, also doing business as ESC Medical Systems, is a corporation organized and existing under the laws of Massachusetts, with its principal place of business located at 100 Morse Street, Norwood, Massachusetts. 3. Defendant, at all times herein, also operated offices located at 100 Crescent Read, Needham, Massachusetts and 5 Pearl Court, Allendale, New Jersey. COUNTI-BREACH OF CONTRACT 4. Paragraphs 1 through 3 above are herein incorporated by reference and made a part hereof. 5. At all times mentioned, Defendant was in the business of selling the Photoderm VL/PL machine, among other products for use in the medical field. 6. On or about 6 March 1997, Plaintiff purchased from Defendant a Photoderm VL/PL machine (hereinafter referred to as "Photoderm") for the purpose of the treatment of leg veins. 7. Prior to the Plaintiff's purchase of the Photoderm, Defendant advertised and represented to Plaintiff that the Photoderm was developed to provide noninvasive treat- merits of leg veins with no needles and injections, and further, that the Photoderm was capable of treating all leg veins from the smallest spider veins to veins four millimeters (4 mm) or more in size. 8. Plaintiff relied upon Defendant's representations and purchased the Photoderm at a purchase price of One Hundred Thirty-Five Thousand Five Hundred Dollars ($135,500). 9. Plaintiff further purchased a hair removal upgrade at a cost of Seven Thousand Five Hundred Dollars ($7,500) and extended warranties at an additional cost of Three Thousand Three Hundred Dollars ($3,300). 10. Plaintiff purchased the Photoderm for use for its ordinary purpose as a machine to be used for the noninvasive treatment of leg veins of up to four millimeters (4 mm) in size. 11. Defendant breached the contract to sell the Photoderm by delivering non-conform- ing goods to Plaintiff. 12. Plaintiff did not, and could not, learn of the non-conformity until the Photoderm machine had been utilized over a period of time. 13. Plaintiff has incurred costs in physician time in setting up and learning the Photoderm in the amount of Eight Thousand Dollars ($8,000) 14. Plaintiff has incurred costs in staff time in setting up and learning the Photoderm in the amount of Five Thousand Dollars ($5,000). 15. Plaintiff has incurred costs in advertising and promoting the use of the Photoderm in the amount of Forty-Three Thousand Eight Hundred Seven Dollars ($43,807). 16. By letter, dated 23 December 1999, Plaintiff notified Defendant he was revoking acceptance of the Photoderm and demanding that Defendant return the purchase price to Plaintiff and pay Plaintiff for all of the costs incurred by Plaintiff for training and education of physicians and staff and the set-up of the Photoderm by physicians and staff, and, since Plaintiff has been ready, willing and able to return the Photoderm to Defendant, made tender to Defendant thereof at that time. WHEREFORE, Plaintiff requests that the court: 1. Award judgment in favor of Plaintiff and against Defendant in the amount of Two Hundred Three Thousand One Hundred Seven Dollars ($203,107); and 2. Award the Plaintiff costs of this suit, including attorneys' fees; and -2- 3. Grant the Plaintiff such other and further relief that this court considers just and proper. COUNT II - BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 17. Paragraphs 1 through 16 above are herein incorporated by reference and made a part hereof. 18. At the time of the sale, Defendant was notified and knew of the purpose for which the Photoderm was being purchased, and then and there warranted to the Plaintiff the Photoderm to be of merchantable quality and fit for a particular purpose. 19. Plaintiff relied upon Defendant's above-described warranties and used the Photoderm for the purpose described above, but the Photoderm, being of unmerchant- able quality and wholly unfit for such purpose, failed to treat any but the smallest veins successfully. WHEREFORE, Plaintiff requests that the court: 1. Award judgment in favor of Plaintiff and against Defendant in the amount of Two Hundred Three Thousand One Hundred Seven Dollars ($203,107); and 2. Award the Plaintiff costs of this suit, including attorneys' fees; and 3. Grant the Plaintiff such other and further relief that this court considers just and proper. COUNT III - BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE 20. Paragraphs 1 through 19 above are herein incorporated by reference and made a part hereof. 21. Plaintiff relied upon Defendant's above-described warranties and used the Photo- derm for the particular purpose described above, but the Photoderm, being wholly unfit for such particular purpose, failed to treat any but the smallest veins, successfully. -3- WHEREFORE, Plaintiff requests that the court: 1. Award judgment in favor of Plaintiff and against Defendant in the amount of Two Hundred Three Thousand One Hundred Seven Dollars ($203,107); and 2. Award the Plaintiff costs of this suit, including attorneys' fees; and 3. Grant the Plaintiff such other and further relief that this court considers just and proper. MILLER & ASSOCIATES, PC Dated: Miller, Jr., Esqu~e/ William E. Anthony E. Marron?~quire 1822 Market Stre~et Camp Hill, PA 17011 (717) 737-9211 (717) 737-9215 ID Nos. 07220 and 48182 Attorneys for Plaintiff -4- VERIFICATION I, JOHN J. $CHIETROMA, M.D., do hereby verify that the statements made in the Foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworned falsification to authorities. Date:tlF~b~,~, ~0~1 J(~l~ J. SCI~'I;I~OMA, M.D. JOHN J. SCHIETROMA, M.D. Plaintiff V. ESC SHARPLAN, a/k/a ESC MEDICAL SYSTEMS Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. 01-754 Civil Term AFFIDAVIT OF RETURN OF SERVICE Arthur Montgomery , being duly sworn according to law, deposes and says: 1. He is a competent adult, age 46 action. , who is not a party to the above 2. On 9 February, 2001,at 11:35 am(hour),serviceofthe Complaint in the above action was made by the undersigned by handing to Jill Cunnlngham ,who is authorized agent in charge of the Defendant Company. 3. Service occurred at 100 Morse Street, Norwood, Massachusetts, which is Defendant's regular place of business. Subscribed and sworn to before me this 9 day of February, 2001 N ,~f'y Public MARIANNE ABAN¥ Notary Public My Commission Expires March 22, 2002 LA¥IN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: ROBERT J. HAFNER, ESQUIRE Identification No.: 44105 510 Walnut Street - 10th Floor Penn Mutual Tower Philadelphia, PA 19106 (215) 627-0303 Attorney for defendant, ESC Medical Systems, Inc. JOHN J. SCHIETROMA, M.D., Plaintiff ESC SHARPLAN, a/ka ESC MEDICAL SYSTEMS, INC., TO: COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 01-754 CIVIL TERM Defendant JURY TRIAL DEMANDED NOTICE OF FILING OF NOTICE OF REMOVAL PROTHONOTARY - CUMBERLAND COUNTY COURT OF COMMON PLEAS Pursuant to the requirements of 28 U.S.C. §1446, defendant, ESC Medical Systems, Inc., files herewith a copy of the Notice of Removal filed in the United States District Court for the Middle District of Pennsylvania on March 2, 2001. LAVIN~ COLEMAN~ O~NEIL~ RICCI~ FINARELLI & GRAY Attorney for defendant, ESC Medical Systems, Inc. ls44 CIVIL COVER SHEET (Rev 07/89) Yhe JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or olher papers as required by law, except as provided by local rules ofcourt.'This Corm, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the parpose if initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I (a) PLAINTIFF John Schietroma, M.D. Pennview Place 220 Grandview Avenue Camp Hill, Pennsylvania 1 ; ([}) COUNTY OF RESIQENCE OF F~RST LISTED PLAINTIFF Cumberland (EXCE?IINUS PLAINIIFFCASES) DEFENDANT ESC Medical Systems, Inc. 100 Morse Street vood,Massac. ll.usetts . T~F RESIDENCE{}{~F 1 LISTED DQND~9 0 (e) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER Robert J. Hafner, Esquire LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY 510 Walnut Street, Suite 1000, Philadelphia, PA 19106 (215) 627-0303 ATTORNEYS (IF KNOWN) William E. Miller, Jr., Esquire Anthony E. Marrone, Esquire 1822 Market Street Camp Hill, PA 17011 (717) 737-9211 II. BASIS OF JURISDICTION /PL^CE^Nx~O:4EBOXONLVl IlL CITIZENSHIP OF PRINCIPAL PARTIES (PLACE ~.NxiNONEBOX (For Diversity Ca, es OMy) FOR PLAINTIFF AND ONE BOX FOR DEFENDANT/ pTF DEF PTF DEF IV. CAUSE OFACTION (ClI~r.~US CIVILSTATUT£UNDERWHICHYOUAREFILINGANDWRITEABR~EFSTAT~MENTOFCAUSE DO NOT CiTE JUR/SDICTIONAL STATUTES UNLESS DIVI~RSITY) Plaintiffhas sued ESC for breach of contract and other causes of action in relation to a product purchased from ESC. Jurisdiction is based upon 28 U.S.C. § 1332 in that plaintiff and defendant are citizens of different states. CONTIL~,CT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES VI. ORIGIN (PLACEANxlNONEBOXONLY) Traas f~cmd from Appeal to Oismct VII. REQUESTED IN CHALK IF THIS iS A CLASS ACTION DEMAND $ Check YES only if demanded in complaint COMPLAINT: ~ USD~CP 23 Excess of $100,000 JURY DEMAND ~ YES [] NO VIII. RELATED CASE(S) IF ANY (See instructions): JuI~ SIGNATURE OF ATTO OF RECO IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOHN J. SCHIETROMA, M.D., Plaintiff ESC SHARPLAN, a/ka ESC MEDICAL SYSTEMS, INC., Defendant CIVIL ACTION No. NTON 1: CV 01- JURY TRIAL DEMANDED 0390 NOTICE OF REMOVAL Defendant, ESC Medical Systems, Inc., by and through its attorneys, Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, respectfully states in support of this Notice of Removal as follows: 1. There was commenced and is now pending in the Court of Common Pleas of Cumberland County, Commonwealth of Pennsylvania, a certain civil action in which the above named, John J. Schietroma, M.D., is the plaintiff and ESC Medical Systems, Inc. is the defendant. 2. Plaintiff delivered original process to ESC Medical Systems, Inc. on or after February 8, 2001, by causing a copy of the Complaint filed in the aforementioned civil action to be delivered via United States Mail to ESC Medical Systems, Inc., located at 100 Morse Street, Norwood, Massachusetts. A tree, correct and complete copy of the aforementioned Complaint is attached hereto as Exhibit "A". 4. The amount in controversy in this matter, exclusive of interest and costs, exceeds the sum of Seventy Five Thousand Dollars ($75,000.00). -l- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY · ATTOR~NE YS AT LAW follows: ESC Medical Systems, Inc., avers that diversity of citizenship exists between the parties as (a) Plaintiff is now and was at the time of the commencement of the aforementioned action in the Cumberland County Court of Common Pleas a citizen and resident of the Commonwealth of Pennsylvania; and (b) ESC Medical Systems, Inc., is now and was at the time of the commencement of the aforementioned civil action in the Cumberland County Court of Common Pleas a citizen of the State of Massachusetts by virtue of the fact it is incorporated under the laws of the State of Massachusetts and maintains/ts principal place of business in the State of Massachusetts. 6. The action between the plaintiff and defendant is one over which this Honorable Court possesses original subject matter jurisdiction under the provisions of 28 U.S.C. § 1332 and is one which may be removed to this Court by the noticing party pursuant to the provisions of 28 U.S.C. § § 1441-1448. 7. This Notice of Removal is filed with this Honorable Court within the time for removal set forth in 28 U.S.C. §1446(b) inasmuch as thirty (30) days has not passed since the receipt by the noticing party of a copy of the paper from which it could first be ascertained that this case is one which is removable. 8. Written notice of the filing of this Notice of Removal will be given to the adverse party as required by 28 U.S.C. §1446(b). 9. A true, correct and complete copy of this Notice of Removal will be filed with the Prothonotary of the Court of Common Pleas of Cumberland County, Commonwealth of Pennsylvania, as required by 28 U.S.C. § 1446(d). -2- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY · AI~rORNEYS AT LAW 10. Pursuant to 28 U.S.C. § 1446(a) there is filed herewith and by reference made a part hereof a true, correct and complete copy of all process, pleadings and orders served upon the noticing party in this action. WHEREFORE, defendant, ESC Medical Systems, Inc., prays that it may effect the removal of this action from the Court of Common Pleas of Cumberland County, Commonwealth of Pennsylvania, to the United States District Court for the Middle District of Pennsylvania. Respectfully submitted, LAVIN, COLEMAN, O'NEIL~ RICCI, FINARELLI & GRAY BY: 510 Walnut Street, Suite 1000 Penn Mutual Tower Philadelphia, PA 19106 (2 l 5) 627-0303 Attorney for defendant, ESC Medical Systems, Inc. -3- LAVIN, COLEMAN, O'NEIL, RICC[, FINARELLI & GRAY · AI~fOR~gEYS AT LAW Exhibit A 02/i5/01 THU 09:45 FAX 0~W SEATTLE - ~002 JOHN J. SCHIETROMA, M,D. Plaintiff v. ESC SHARPLAN, a/Ida ESC MEDICAL SYSTEMS Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. d'l' 7'-~'-('/ Civil Term NOTICE YOU HAVE BEEN SUED IN COURT. if you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entedng a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff, You may lose money or property or other rights important to you, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 TRUE COPY FROM RECORD m Testlmoflf w~ereol' I here unto set my ~ 02/15/01 THU 09:48 FAX 0MW SEATTLE -- ~003 NOTICIA USTED HA SIDO DEMANDADNA EN CORTE. Si usted desea defender'se de las demandas que se'presentan mas adelante en las siguientes paginas, debe romar accion dentro de los proximos veinte (20) dias despues de la notiflcacion de esta Demanda y Aviso radicando personalmente o pot medio de un abogado una comparecencia escrita y radicando en la Corte pot escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe antedormente, el caso puede proceder sin usted y un fallo pot cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya pot la Cor[e sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos impor~antes para usted. USTED DEBE LLEVAR ESTA DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASlSTENClA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 02/15/01 TH'L' 09:45 JOHN J. SCHIETROMA, M.D. Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY~ PENNSYLVANIA ESC SHARPLAN, a/ida ESC MEDICAL SYSTEMS Defendant No. Civil Term 1. Plaintiff, JOHN J. SCHIETROMA, M.D., now is, and at all times mentioned was, practicing medicine and doing business in an office located at Pennview Place, :220 Grandview Avenue, Camp Hill, East Pennsboro Township, Cumberland County, Pennsylvania. 2. Defendant, ESC SI4ARPLAN, also doing business as ESC Medical Systems. is a corporation organized and existing under the laws of Massachusetts, with its principal place of business located at 100 Morse Street, Norwood, Massachusetts. 3. Defendant, at all times herein, also operated offices located at 100 Crescent 'Road, Needham, Massachusetts and 5 Pearl Court, Allendale, New Jersey. COUNTI-BREACH OF CONTRACT 4. Paragraphs 1 through 3 above are herein incorporated by reference and made a part hereof. 5. At all times mentioned, Defendant was in the business of selling the Photoderm VL/PL machine, among other products for use in the medical field. 6. On or about 6 March 1997, Plaintiff purchased from Defendant a Photoderm VL/PL machine (hereinafter referred to as "Photoderm") for the purpose of the treatment of leg veins. 7. Prior to the Plaintiff's purchase of the Photoderm, Defendant advertised and represented to Plaintiff that the Photoderm was developed to provide noninvasive treat- ments of leg veins with no needles and injections, and further, that the Photoderm was 02/15/01 THU 09:45 F.~ OMW SEA/~rLE -' GOOS capable of treating all leg veins from the smallest spider veins to veins four millimeters (4 mm) or more in size. 8. Plaintiff relied upon Defendant's representations and purchased the Photoderm at a purchase price of One Hundred Thirty-Five Thousand Five Hundred Dollars ($135,500). 9. Plaintiff further purchased a hair removal upgrade at a cost of Seven Thousand Five Hundred Dollars ($7,500) and extended warranties at an additional cost of Three Thousand Three Hundred Dollars ($3,300), 10. Plaintiff purchased the Photoderm for use for its ordinary purpose as a machine to be used for the noninvasive treatment of leg veins of up to four millimeters (4 mm) in size~ 11. Defendant breached the contract to sell the Photoderm by delivering non-conform- ing goods to Plaintiff. 12. Plaintiff did not, and could not, learn of the non-conformity until the Photoderm machine had been utilized over a period of time. 13, Plaintiff has incurred costs in physician time in setting up and learning the Photoderm in the amount of Eight Thousand Dollars ($8,000) 14. Plaintiff has incurred costs in stafftime in setting up and learning the Photoderm in the amount of Five Thousand Dollars ($5,000), 15. Plaintiff has incurred costs in advertising and promoting the use of the Photoderm in the amount of Forty-Three Thousand Eight Hundred Seven Dollars ($43,807). 16. By letter, dated 23 December 1999, Plaintiff notified Defendant he was revoking acceptance of the PhOtoderm and demanding that Defendant return the purchase price to Plaintiff and pay Plaintiff for all of the costs incurred by Plaintiff for training and education of physicians and staff and the set-up of the Photoderm by physicians and staff, and, since Plaintiff has been ready, willing and able to return the Photoderm to Defendant, made tender to Defendant thereof at that time. WHEREFORE, Plaintiff requests that the court: 1. Award judgment in favor of Plaintiff and against Defendant in the amount of Two Hundred Three Thousand One Hundred Seven Dollars ($203,107); and 2. Award the Plaintiff costs of this suit, including attorneys' fees; and -2- 02/13/01 THU 09:46 FAX Oh'W SEATTLE -- ~006 3. Grant the Plaintiff such other and further relief that this court considers just and proper. COUNT II ~ BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 17. Paragraphs 1 through 16 above are herein incorporated by reference and made a part hereof. 18. At the time of the sale, Defendant was notified and knew of the purpose for which the Photoderm was being purchased, and then and there warranted to the Plaintiff the Photoderm to be of merchantable quality and fit for a particular purpose. 19. Plaintiff relied upon Defendant's above-described warranties and used the Photoderm for the purpose described above, but the Photoderm, being of unmerchant- able quality and wholly unfit for such purpose, failed to treat any but the smallest veins successfully. WHEREFORE, Plaintiff requests that the court: 1. Award judgment in favor of Plaintiff and against Defendant in the amount of Two Hundred Three Thousand One Hundred Seven Dollars ($203,107); and 2. Award the Plaintiff costs of this suit, including attorneys' fees; and 3. Grant the Plaintiff such other and further relief that this court considers just and proper. COUNT III - BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE 20. Paragraphs I through 19 above are herein incorporated by reference and made a part hereof. 21, Plaintiff relied upon Defendant's above-described warranties and used the Photo- derm for the particular purpose described above, but the Photoderm, being wholly unfit for such particular purpose, failed to treat any but the smallest veins, successfully. -3- WHEREFORE, Plaintiff requests that the court: 1. Award judgment in favor of Plaintiff and against Defendant in the amount of Two Hundred Three Thousand One Hundred Seven Dollars ($203,107); and 2. Award the Plaintiff costs of this suit, including attorneys' fees; and 3. Grant the Plaintiff such other and further relief that this court considers just and proper. MILLER & ASSOCIATES, PC Dated: William E. Miller, .Jr., Esqt~J~:e' Anthony E. Marmnet..E~'~'uire 1822 Market Street" Camp Hill, PA 17011 (717) 737-9211 (717) 737-9215 ID Nos. 07220 and 48182 Attorneys for Plaintiff -4- 02,'15'0I THI' 09:46 FAX O~ SEARLE [~007 02/15/01 ]'Htr 09:41] FAX 0MW SEATTLE V_.I~,RIFICATION I, JOHN J. SCHIETROMA, M.D., do hereby verify that the statements made in the Foregoing Complaint are (rue and correct [o the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unswomed falsification to authorities. _/ // .- //' /... JO~N J. SCH'fE'r'ROMA, M.D. IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOHN J. SCHIETROMA, M.D., 'Plaintiff ESC SHARPLAN, a/ka ESC MEDICAL SYSTEMS, INC., Defendant CIVIL ACTION No. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, ROBERT J, HAFNER, ESQUIRE, hereby certify that a true, correct and complete copy of the attached Notice of Removal was served upon counsel for plaintiff via United States Mail on March 1,2001, at the address listed below: William E. Miller, Jr., Esquire Anthony E. Marrone, Esquire 1822 Market Street Camp Hill, PA 17011 Attorneys for plaintiff, John J. Schietroma, 3~D. LAVIN, COLEMAN, O~NEIL, RICCI, F1NARELLI & GRAY BY: Attorney for defendant, ESC Medical Systems, Inc.