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Home My WebLink About04-3001 __ ~",'JJ.. PUL.EO & D'EMILlO, LLC PAUL F. O'EMILlO, ESQUIRE ATTORNEY 1.0.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 STEPHANIE E. CHERTOK. ESQUIRE PA SUPREME COURT ID: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717 -249-1177 ATTORNEYS FOR PLAINTIFF VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI HUSBAND AND WIFE 125 LINCOLN STREET MARYSVILLE. PA 17053 VS. SHEETZ, INC. 6558 CARLISLE PIKE MECHANICSBURG. PA 17055 AND OPW ENGINEERED SYSTEMS 2726 HENK1.E DRIVE LEBANON, OH 45209 AND OPW FUELING COMPONENTS 9393 PRINCETON.GLENDALE ROAD CINCINNATI, OHIO 45011 AND RICHARDS, AN OPW COMPANY 129 MANUFACTURERS ROAD ROCKWOOD, TENNESSEE 37854 AND KEYSTONE PETROLEUM 981 TRINDLE ROAD WEST MECHANICSBURG. PA 17055 : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA : NO. ()4- 3001 C;:l\ : JURY TRIAL DEMANDED : CIVIL ACTION IgjUU,,"/UUJ ~"""'.' vv PRAECIPE FOR. SUMMONS TO THE PROTHONOTARY: Issue Summons in Civil Action in the above case. Writ of Summons shall be forwarded to _ AttorneylL Sheriff ~aJ t7 D~ Paul F. D'Emilio, Esquire 660 Sentry Parkway, Suite 210 Blue Bell, PA 19422 (610) 941-3600 Attorney J.D. #16654 /t ~p~ tep ie E. Chertok, Esquire 61 West Louther Street Carlisie, PA 17013 (717) 249-1177 Attorney /.D. # 52651 Date: June 28. 2004 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. 16654 905 WEST SPROUL RD. SUITE 105 SPRINGFIELD, PA 19064 610-338-0338 STEPHANIE E:. CHERTOK, ESQUIRE PA SUPREME COURT ID: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717-249-1177 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLINI AND HIRAM BORGOILNI : IN THE COURT OF COMMON HUSBAND AND WIFE : ]~LEAS OF CUMBERLAND VS. : COUNTY PENNSYLVANIA SHEETZ,INC. AND OPW ENGINEERED SYSTEMS AND OPW FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM : NO. 04-3001 : JURY TRIAL DEMANDED : CIVIL ACTION PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS SHEETZ. INC.. AND KEYSTONE PETROLEUM AND NOW, come Plaintiffs Vickie D. Borgolini and Hiram Borgolini, by and through their counsel of record Paul F. D'Emilio, Esquire, and Stephanie E. Chertok, Esquire, and move this Honorable Court for entry of Summary Judgment in their favor and against Defendant Sheetz, Inc., and Defendant Keystone Petroleum in this action pursuant to Pa.R.C.P. No.1 035.1, et seq., for the following reasons; 1. The above captioned action was filed by Plaintiffs against the forenamed Defendants as a result of an incident that occurred on or about June 27, 2002, at a gas station/convenience store owned by Defendant Sheetz, Inc. 2. The Plaintiffs commenced an action against Defi:ndants Sheetz, Inc., OPW Engineered Systems, Richards Industries Valve Group and Keystone Petroleum on June 18, 2004. An Amended Complaint, in which OPW Fueling Components was added as a Defendant in the action, was filed on August 11, 2004. On the same date, a separate action was commenced against Defendants Sheetz, Inc., et aI. These cases were consolidated for purposes of discovery -1- and trial by order of the Honorable Kevin A. Hess dated December 17, 2004. See Order to Consolidate, exhibit "A," page I. 3. In their Complaint, Plaintiffs have sued all Defendants under theories of negligence, strict liability and breach of warranty. These theoril~s have as their factual underpinnings Plaintiff Vickie D. Borgolini's allegations that she suffered injuries when the gas nozzle that she was utilizing on aforesaid date suddenly artd without warning burst from her hand with fuel spouting from it, saturating her chest and gushing into her face and eyes. 4. Plaintiff Vickie D. Borgolini further alleged that her resulting injuries were caused by a malfunction of the gas nozzle and/or pump. 5. On July 10,2002, counsel for Plaintiffs wrote to Defendant Sheetz and Defendant Keystone Petroleum, advising them of a potential claim naming them as Defendants. See letter, exhibit "B." Receipt of this letter was confirmed through the computerized records of Defendant Sheetz, as well a letter to Plaintiffs' counsel dated July IS, 2002.. See exhibits "C," and "D," respectively. 6. Defendant Sheetz, forwarded the aforementioned letter to their risk management officer, Mary Anslinger, who failed to investigate or make any inquiry into the possible cause of the incident. See deposition of Mary Anslingl~r, exhibit "E." 7. Defendant Sheetz, in its Answer, has denied that the gas pump or nozzle malfunctioned; rather, Defendant Sheetz has alleged that PlaintilffVickie D. Borgolini's injuries were the result of her "misuse" of the gas pump. 8. On July 26, 2002, Defendant Sheetz, through its subcontractor Defendant Keystone Petroleum, removed the Multiple Product Dispenser (MPD) on pump 5 at store 195; the old dispenser was discarded by Defendant Keystone Petroleum. The MPD is the portion above the ground that dispenses regular, plus, and super grade gasolines. 9. The hoses and nozzles, including those involved in the incident resulting in this claim, were not replaced at this time by Defendant Keystone Petroleum. See exhibit "F," page 9. 10. A few days after July 26, 2002, Defendant Sheetz replaced the nozzles and hoses on pump 5. The nozzle and hoses were removed and discarded at this time even though Defendants Sheetz and Keystone admittedly knew of the Plaintiffs' injuries and counsel's representation of the Plaintiffs, and were on notice of a potential claim against them involving the nozzle. See exhibits "B," "E," page 7, and "F," pages 8-10,18,19. II. The disposal of the nozzle and hoses by Defendant Sheetz, as well as the dispenser unit by Defendant Keystone Petroleum, has deprived Plaintiffs of the opportunity to have the equipment examined by an expert of their choice. Moreover, the nozzle, hoses, and -2- dispenser unit were not inspected by Sheetz, Inc., or Keystone Petroleum to discern the nature or cause ofthe alleged malfunction before the evidence was discarded. ]2. In light of the fact that Defendant Sheetz and Deftmdant Keystone Petroleum are solely responsible for the unavailability of the evidence and the extent to which the Plaintiffs' case is prejudiced, the proper sanction for this spoliation of evidmce is Summary Judgment for Plaintiffs and against Defendant Sheetz and Defendant Keystone Petroleum on the issue of liability. ]3. The pleadings in this case have been completed. ] 4. Counsel for Defendant Sheetz has filed a praecip<: listing the case for trial. However, counsel for Plaintiffs are opposed to this request because their Discovery efforts have been delayed by the actions of Defendant Sheetz and Defendant Keystone Petroleum, due to spoliation of evidence and incomplete deposition testimony. ]5. Defendant OPW Engineered Systems has also corresponded with Plaintiffs' counsel regarding the missing evidence, stating that the unavailability of the nozzle in question has delayed their response to Plaintiffs' discovery requests, further delaying Plaintiffs' efforts to conclude discovery and proceed to trial. See letter to Plaintiffs' counsel, exhibit "G." ]6. Therefore, this Motion for Summary Judgment will not delay trial in these proceedings, but rather it will expedite trial preparation efforts by resolving the issue of the examination of the nozzle. WHEREFORE, Plaintiffs pray that this Honorable COUfi grant their Motion for Partial Summary Judgment against Defendant Sheetz and Defendant Keystone Petroleum, on the issue of liability, with trial thereby limited solely to the issue of the amount of damages to be awarded to Plaintiffs. Respectfully submitted by: ~re Paul F. D'Emilio, Esquire Attorneys for Plaintiffs Dated: July 6th, 2005 -3- S tehi 1;-1- Ad i DEe 1 4 7004 PULEO & D'EMILlO, LLC PAUL F. D'EMILlO, ESQUIRE ATTORNEY 1.0,# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 STEPHANIE E, CHERTOK, ESQUIRE PA SUPREME COURT 10: 52651 61 WEST LClUTHER STREET CARLISLE, PA 17013 717 -249.1177 ATTORNEYS FOR PLAINTIFFS : IN THE COURT OF COMMON : PLE:AS OF CUMBERl.AND : COUNTY PENNSYl.VANIA VICKIE D. BORGOLlNI AND HIRAM SORGOLINI VS. SHEETZ, INC. OPW ENGINEERED SYSTEMS OPW FUELING COMPONENTS RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : NO. 04.2798 : CIVIL ACTION : JURY TRIAL OEMANDED SHEETZ/INC. OPW ENGINEERED SYSTEMS OPW FUELING COMPONENTS RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : IN THE COURT OF COMMON : PLE:AS OF CUMBERLAND : COUNTY PENNSYLVANIA ~ NO. 04.3001 ./ : CIVIL ACTION : JUFW TRIAL DEMANDED VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI VS. ORDER AND NOW, TO WIT, thiS/ 7 ?Jay of 8..x.t.un~GvJ ,2004 upon Motion of Plaintiffs, Vickie D. Borgolini and Hiram Borgolini, it is ORDERED and DECREED that the above-captioned actions are consolidated for purpose of discovery and trial as of the following Court term and number, Court of Common Pleas of Cumberland County, No. 04-3001. BY THE COURT: J. F.'- "i.J IS- LAw OFFICES ROVNER, AllEN, ROVNER, ZIMMERMAN AND NASHt ROBERT A. ROVNER BRUCE S. AlLEN HOWARD P. ROVNER JEFFREY 1. ZIMMERMAN ERIC S. NASH JEFFREY A. SIGMAN JOSEPH S. LUKOMSKI' CHERYL B. WOLP" JOSEPH S. VIOlA STEVEN L. ROVNER'" JOHN S. STEWART ROBIN C. 5COLNlCKn 175 BUffiETON PIKE FEASTERVILLE, PA 19053-6456 NEW JERSEY OFFICE CHERRY HIll PROFESSIONAl BUILDING 411 RT. 70 EAST, SUITE 210 CHERRY HIll, Nj 08034 856-795.5111 PHlLA. (215) 698.1800 BUCKS CO. (215) 322-0411 (215) D-I.A.L.L.A-W TOLL FREE (888) D.1.A.L-L.A.W FAX# 2 I 5.355.0940 JOSEPH S. LUKOMSKI MANAGING NJ ATTORNEY REPt Y TO, FEASTERVILLE OFFICE . MEMBER OF PA, NJ & TENN. BARS .. MEMBER OP PA & NJ BARS "'MEMBER OF PA, NJ & FL BAllS t LAW OFFICES OF ROBERT A. ROVNER, P.C. Internet: www.dial-law.com July 10, 2001 Sheetz Inc. 6558 Carlisle Pike Mechanicsburg, P A 17050 RE: Our Client: Vickie Borgolini DOL: 06/27/02 Dear Sir/Madam: Be advised that our office represents Vickie Borgolini with regard to injuries she sustained as a result of your negligence. On the above-mentioned date our client was fueling her car when the hose she was using sprayed her with gasoline. She was saturated with gasoline and suffered severe injuries to her eyes. The cause was an improperly functioning gas pump No.6. Also, it was brought to our attention that on 07/0li02 a repair was conducted on pump No.6 by Keystone Petroleum Co.. I ask that you report this accident to your insurance company as soon as possible so that I may deal directly with them. If you are uninsured, please advise this office immediately. We understand you have videotape of the incident and would ask that the tape be preserved. --- ~~YY~~~~:.'.' Daniel Pridachin Paralegal to John S. Stewart JSS/dp cc: Keystone Petroleum Co. '. NOV. 2121. 2e02 3:22PM " S~'" !~S(clmit 72171U2030) . RISV 1NRGEJ1ENT fttJ...~i.J. C NO. 898 P.12 Cc:. ~ Snbject:.StOrD~~s;,i!.... . . ..."............".. ~~ . ~,.~:'.otil. ,.\ _____ I have a claim for~' 0= on 612 ustomer was N . ..........." VlCkie BorgoUnl ~d that she IW& ~6 she llot AJ..1..",~ splashed with gas. U l { I Ref attorney is also indicating in his lettar that Keyrtono PetroJeUlrl was out to complete the l'epoirs on July 1. 2002. No CQJ I ~ Can you please obtain from th= a copy of what was done for the L ~ completion of the repairs and also If you = pull your recorda for the I r 1\ (.1) m 'r- last 5 months it mere were any repairs done to this pump aa well. I\J U \:. 'fA-^' ( I Please let lIIC know if you have any qUOfliOll& regarding this matter. ______ Thanks Toni . . -71(Jt/[Q?--#5}Lo ~L-l: bt tmCto' ~ 1)~tOL t"5\lo dA.~.( ~ ., !dLtlOd- ~ lo ~ D(j tru.e G ~ S<..Pl ~~ A: USlBeL/- . ..J L.SJ:S~ ~ . alternative ServicE:: Concepts L.L.C. A PROGRESSIVE RISK SOLUTiONS FIRM ~ "J,.;&ii- D July 15, 2002 Rovner, Allen, Rovner, Zimmerman and Nash 175 Bustleton Pike Feasterville, PA 19053 - 6456 Attn: Daniel Pridachin, paralegal Re: Claim Number Insured DOL Your Client 7217102030 Sheetz, Inc. 6127102 Vickie Borgolini Dear Mr. Pridachin, I am writing to advise you that I represent the insurance carrier for Sheetz, Inc. They have advised me of the incident referenced above and forwarded your letter of representation dated July 10, 2002. I would request the opportunity to obtain your client's statement of the events in order to conduct a thorough and accurate investigation of the circumstances. I would request that you also provide some detail on the type and extent of injury she is claiming. Please be advised that there is no video available contrary to what you indicated in your letter that you believed to exist. Thank you for your attention to this request. Sincerely, ;!.A7J1~ R. Alan Mellott Senior Claim Adjuster Foster Plaza #9 . 750 Holiday Drive . Pittsburgh, PA 15220 Phone: 412.928.8000 . Fax: 412.928.8963 . MARY. ANSLINGER MAY 10,2005 J A Almost six years. 2 Q Okay. What is your educational background? 3 A I have a bachelors degree in business 4 administration from St. Francis University. I aro currently 5 pursuing a masters in business administration from St. 6 Francis. I also have an associate in risk management 7 designation through the Insurance Institute of America. 8 Q Okay. You're associated in what kind of 9 insurance? What designation was that again, please? lOA It's called ARM, associate in risk management. 11 Q When did you receive your risk management 12 associates degree? 13 A That would have been approximately 1999. 14 Q All right. And your bachelors degree? 15 A 2003. 16 Q Okay. Who are you currently employed by? 17 A Sheetz, Incorporated. 18 Q How long have you been employed by Sheetz? 19 A A little shy of twenty years. 20 Q What is your current position with Sheetz? 21 A Risk manager. 22 Q How long have you been in that position? 23 A Approximately five and a half years. 24 Q Were you in the position on Junc 27, 2002? 25 A Yes, I was. Page 7 1 Q Did you receive a notice from an attorney 2 regarding a possible claim by Mr. and Mrs. Borgolini? 3 A TIle -- yes, but I am not certain of the date. 4 Q Okay. Well, do you have those records with you? 5 A No, I don't. 6 Q All right. Do you recall what the nature of the 7 claim was? 8 A Yes. 9 Q What do you recall? lOA That Mrs. Borgolini had gotten gas on herself. 11 Q Okay. Do you know where she got the gas? 12 A I am not sure what you mean, what store? J3 Q I will rephrase it. What store, yes. J4 A I believe store 195. 15 Q Okay. Do you recall the pump that was at issue? 16 A Could we go off the record for a second? 17 (Discussion held off the record.) 18 THE WITNESS: Okay. I am fine now. Thank you, 19 According to the information received from the 20 store, it was pump five. 21 BY MR. D'EMlLIO: 22 Q Okay. Now, what -- do you have a standard 23 procedure -- or let me put it this way. 24 In June of 2002, did Sheetz have a standard 25 procedure in dealing with claims regarding the pumps? Page 6 - Page 9 Multi-PagelM 4~w:";~iJ E Page 6 Page 8 I A Yes. 2 Q Okay. What was the standard? What was the 3 procedure? 4 A That if there was a problem with the pump, that 5 maintenance would be contacted and that if there were any 6 repairs that were warranted, those would be done, and the 7 parts would be S€iVed if the parts needed replaced. 8 Q Are you aware that in this case that parts were 9 replaced after the incident, but the parts -- the old parts 10 were never saved? 11 A Do you mean at the same day of the incident? I 12 need some clarification if possible. 13 Q No. The way I understand the incident occurred ] 4 on June 27,2002. 15 Did you at that point receive notice of the 16 incident? 17 A Yes. 18 Q Okay. Now, at that point in time, what did you 19 do? 20 A Based on the information that we had from the 21 initial report, that the pump was operating properly, no 22 other reports or complaints occurred, so no repairs were 23 made maintenance, dido't replace or change anything. 24 Q All right. So let me go back again. What did 25 you actUally do in response to the notice of the claim, the Page 9 I original notice? 2 A My office reviewed the report and saw that Mrs. 3 Borgolini needed medical treatment, SO we assigned the file 4 to ASC who investigates claims on behalf of Sheetz, 5 Incorporated. 6 Q Okay. Did you request that a mechanic. Someone 7 like Jason go and examine the pump in question? 8 A No, we did not. 9 Q Okay. Now, subsequent to that, did you receive a ] 0 letter from an attorney who was representing Mr. and Mrs. 11 Borgolini? 12 A Yes. 13 Q Okay. In that letter he indicated that Mr. and 14 Mrs. -- that Mrs. Borgolini was injured as a result of the ] 5 examination of that pump, is that fair to say? 16 A Yes. 17 Q Okay. At that point in time, did you have a 18 mechanic go out and examine the pump? J9 A No. 20 Q Okay. All right. Could you tell me why? 21 A Because according to our information the pump was 22 operating fine. We had received no other complaints from 23 customers. 24 Q Okay. Now, according to your information, where 25 did you receive !:his information? HUGHES ALBRIGHT FOLTZ NATALE 717-540-0220/717-393-5101 'JASON HYLE MAY 10,2005 Page 6 1 petroleum end of our business. 2 Q Did you perform those duties on June 27, 2002? 3 A I have no recollection of doing any work on June 4 27. 5 Q Was that your -- 6 A I am sorry, in general, yes, I was working on 7 that day, yes, that was my job. 8 Q Okay. Does your area of responsibility include 9 the Sheetz store on the Carlisle Pike in Silver Spring 10 Township? II A Yes, it does. That's one of my stores. 12 Q Okay. Are you familiar with Keystone Petroleum? 13 A Yes, I am. 14 Q What if any relationship is there between Sheetz 15 and Keystone Petroleum? 16 A We use Keystone as a subcontractor to assist in 17 maintenance work if we need them, a lot of construction 18 maintenance concerns, concrete work, that type of stuff 19 Q We are here about an incident that occurred on 20 June 27; 2002 when Mrs. Borgolini claims that gasoline from 21 pump five sprayed on her. 22 Are you familiar with the incident itself? 23 A Yes, I am. 24 Q To your knowledge, prior to that incident, did 25 Keystone do any work on pump five, the one that she claims Page 7 1 sprayed gas on her? 2 A Not that I know of 3 Q Did you as a result of my notice of your 4 deposition or designee deposition, did you review records 5 of maintenance on that pump? 6 A I looked back through my personal records. 7 Q How about the corporate records? 8 A No. 9 Q Do your personal records reflect that Keystone 10 did any work on that pump? 11 A No. 12 MR. WEIDNER: That's all I have. 13 MR. SORCE: I don't have any questions for you. 14 Thank you. 15 BY MR. D'EMlLlO: 16 Q Mr. Hyle, how are you. My name is Paul D'Ernilio. 17 Myself and Stephanie Chertok, we represent Mr. and Mrs. 18 Borgolini in this matter. I have a few questions for you. 19 Are you aware that on July 24, 2002 Keystone 20 replaced the dispenser on pumps five and six in store 195? 21 A Yes. 22 Q Okay. Did you do any work on those pumps at that 23 time? 24 A A few days afterwards I did. 25 Q Okay. What work did you do a few days Page 6 - Page 9 Multi-Page 1M &I...~;~ 1= Page 8 1 afterwards? 2 A I replaced -- put on the Sheetz brand panels. I 3 essentially made it a Sheetz dispenser, made it look like 4 the rest of the dispensers there. To the best of my 5 knowledge, I put six new nozzles on. 6 Q I am sorry, give me that again. 7 A To the best of my knowledge, I put six new 8 nozzles on, six brand panels. The color, put down on the 9 front of the pump. 10 Q Let me back up and ask you a question. Were 11 there six nozzles on that pump? 12 A Yes. 13 Q So there was a nozzle for each grade of gasoline? 14 A Yes. 15 Q This was in July of 2000 -- June of 2002? 16 A July of 2002. 17 Q You are right that was July, I am sorry. I 18 didn't mean to trick you, I was just wrong. 19 Now, when you say that you put six new nozzles 20 on, what did you do with the old nozzles? 21 A Just got rid of them the same way I do with all 22 of -- with all old nozzles. 23 Q And why did you put six new nozzles on? 24 A Because the nozzles that were on the used 25 dispenser were old nozzles, came with the dispenser. Page 9 1 To the b<:st that I can remember, they were all 2 black, and at Sheetz we use black, blue and red, so it was 3 basically just to make it a Sheetz dispenser. 4 Q Okay. Now, we had someone frOnt Keystone in 5 earlier. The way that I understand his testimony was that 6 they put the old Sheetz nozzles on the used dispenser when 7 it came in, when they install it. 8 Are you familiar with that? 9 A I don't remember them doing that. 10 MR. MCNAMARA: That's not exactly what he said. 11 He said from looking at the records he didn't know anything 12 by personal knowledge, but frOnt looking at the records, he 13 had not billed for hoses and nozzles as a separate item. 14 MR. D'EMILIO: Well, he went on to say, at least 15 the way I recall his testimony, that he replaced -- he 16 returned hoses and nozzles with the original dispenser to 17 the used dispenser, but let me go back then. 18 BY MR. D'EMILlO: 19 Q In any event, a few days later, so it's a couple 20 of days after July 24th, 2002, correct? 21 A Correct. 22 Q All right. You went in and you took all of the 23 hoses and noz,1es off! 24 A Just the nozzles. 25 Q All right. So you took all of the nozzles off. "J:TTY""'Tmco AT 'OnT,...,TT...... "I7.t'""-T 'T""'7 ....7.,.......... T ~ '7'1'7 CAh n,.,...n/71"_"O~_C1n, Page 10 \ l J You replaced them with Sheetz nozzles? 2 A Yes. 3 Q Who manufactured the Sheetz nozzles? 4 A The ones that I use are manufactured by Richards 5 Industries. 6 Q When Keystone builds a store for you and installs 7 dispensers and pumps, are the nozzles that are used to 8 manufacture -- that are used manufactured by Richards also? 9 A I can't answer that. It depends when the store ] 0 was built, what we're using at that time. ]] Q When store 195 was built? 12 A I wasn't around when store 195 was built, so I 13 don't know. 14 Q Do you recall at any time prior to July of 2002 15 replacing any of the nozzles on pumps five and six at store 16 195? 17 A Not off the top of my head, not without looking 18 at records. 19 Q All right. Let me ask you where would those 20 records be? 21 A Sheetz would have a copy of all work orders 22 performed. I keep personal records of the work that I do 23 on a daily basis. 24 MR. D'EMILIO, Kevin, did you produce those 25 records to us? ) ..."' Page I I I MR. MCNAMARA, What Sheetz produced to me was a 2 computer registry of all of the complaints for the store 3 and there were 70, 80, 90 pages. They are not anything in 4 regards to -- they are not pump specific. I had to pick 5 those out. 6 That listing that I produced for you represents 7 all of the work that was done on pump five for the year 8 before and the year after the occurrence, all of the 9 customer complaints and all of the work that was completed. 10 It even indicates on the right hand side of that listing ]] who had done the work. And the Jason that's referred to on 12 those descriptions is the fellow that's sitting to your 13 left. 14 MR. D'EM1LIO, Okay. Is this what we're-- 15 MR. MCNAMARA, That's exactly what I am talking 16 about. 17 MR. D'EMILIO, Okay. Great. ] 8 BY MR. D'EMILIO, 19 Q All right. According to your counsel's listing 20 on August 16, 2002, it indicates that you replaced the 21 break away and installed colored scuffs on pump five and 22 six. 23 Could you tell me what the break away was? 24 A The break away is a valve near the top of the 25 hose so that if someone drives away with the hose in their Multi-Page TM JASON HYLE MAY 10,2005 Page 12 1 car, it's separates there to prevent a gas spill. 2 Q Can you tell me why you replaced the break away? 3 A Hecause someone pulled away with the hose in 4 their car and separated it. 5 Q Okay. And when it says installed color scuffs on 6 pump five and six, what was that work done? 7 A Color scuffs would probably be the color 8 put-dowDs. I may have had to replace them or maybe after 9 the dispmser was replaced. Maybe I dido 't get them 10 replaced then, maybe I had to order those parts. 11 Q That would be .the cover sheet for the dispenser? 12 A Just a decal that goes on the front. 13 Q Okay. The record, at least what your counsel ] 4 gave me, on August 16, 2002 says pump No. 5 92 grade is 15 leaking. At that point you replaced the break away. 16 111ere is no indication in the records at least 17 that I have that someone pulled away from it and pulled it 18 off? ]9 A If that's the call description, it must have been 20 leaking at the break away, that's why I would have replaced 21 the break away. 22 Q Okay. And the break away, the point at which the 23 hose CODl1ects to the dispenser -- 24 A Thte dispenser -- you have a short hose, the break 25 valve, the long hose, then the nozzle. Page 13 1 Q So between the dispenser and the break away is a 2 short hose? 3 A Yes. 4 Q Okay. Now, I just want to make sure that I 5 understarld. 6 I know this is repetitive, I apologize for it. 7 But there are actually six different nozzles on pump five 8 and six? 9 A Three on pump five, three on pump six, one for 10 each grade of gasoline. ] 1 Q Okay. All right. ]2 On that 8-16, the notes says pump number five 92 13 grade is leaking. What grade of gas would that be? 14 A 92 is the high octane, the red nozzles at Sheetz. 15 Q Now, on December 23rd, 2002, it indicates that 87 16 octane, the fllter was replaced on pump five and six. Do 17 you recall doing that? ]8 A Yes. ]9 Q Call you tell me why that was done? 20 A Pumping slow. 21 Q I am sorry, what? 22 A They were pumping slow. The delivery was slow on 23 the dispenser. 24 Q Is there some reason why you thought the filter 25 was causing that? Page 10 - Page 13 Page 18 1 November 9, 2004. What did you do? 2 A Looks as though I replaced the swivel on the 92 3 octane on pump No.5. 4 Q Why was that replaced? 5 A It probably would have been leaking. 6 Q All rigbt. 7 When is claim is filed against Sheetz that deals 8 with one of these pumps or one of the stations, do you get 9 notice of that? 10 A No. 11 Q Who is the person who has notice of those claims? 12 A I couldn't answer that. I don't know. 13 Q When was the first time that you found out that 14 there was a claim regarding pumps five and six at the 15 Sheetz station 195? 16 A I don't know when the date was. I remember 17 personnel at the store telling me about it at one point in 18 time, but I couldn't tell you when the date was. After 19 that the next time I found out was just this week. 20 Q Do you know if Sheetz has any kind of a policy 21 regarding claims? 22 A No, I don't. 23 Q Are you involved in the claims handling at all? 24 A No. 25 Q Do the management -- do the -- well, let me go Page 1 9 ) I back for a minute. 2 You mentioned that someone at the store migbt 3 have told you about the claim. 4 Do you recall when that was? 5 A I don't know when that was. 6 Q Do you remember who at the store told you? 7 A I am not even sure when -- who it was, one of the 8 management personnel. 9 Q All rigbt. Do you remember was it a male or 10 female? II A I am not even sure about that. 12 Q And do you remember anything about what they told 13 you about the claim? 14 A All I remember is that they had a letter that 15 they had received, and just basically that they were being 16 sued over a gas spill. 17 Q Okay. Do you remember -- let me go back for a 18 minute then. 19 Of all of these times when you were at store -- 20 well, let me go back. 21 Are these all of the times that you were at store 22 195, did we go over all of those since June 27th, 2002? 23 A I don't know that. I didn't see the full list of 24 calls for that store, unless -- 25 MR. MCNAMARA I will represent to you Sheetz Multi-Page 1M JASON HYLE MAY 10,2005 Page 20 I keeps computerized records of these things. 2 I went through the computerized records and that 3 two-page summary is every single complaint, call, service 4 work that was done to pump five from a year before the 5 incident and a year after. 6 MR. D'EMIUO: Okay. Thank you. 7 BY MR. D'EMIUO: 8 Q Do you remember at which one of these occasions 9 after June 27, 2002 that you were told about the claim? 10 A I don't. II Q T:ile representative from Keystone earlier told you ] 2 that they -- let me go back to the -- let me go back to the 13 dispenser, the dispensing unit as it appears on June 27, ]4 2002, that is before you changed the nozzles. 15 Are there any warnings? Were there any warnings ]6 on the nozzles before or at the time of June 27, 2002? 17 A What do you mean by warnings? ]8 Q Well, when you would pick the nozzle up, put it 19 into your car, into the gas tank of your car, was there any 20 warning" on the top of it for consumers to read? 21 A At that time, I don't know if there was or not. 22 Q Who would know? 23 A TIle nozzle manufacturer perhaps. 24 Q Okay. Do you have any of those -- do you know 25 where any of those nozzles would be at this time? Page 21 ] A No, I don't. 2 Q Did the managers of the store have authority to 3 change any of the nozzles? 4 A No. 5 Q Did you handle all of the maintenance, repairs of 6 the pumps, dispensing unit nozzles on hoses yourself? 7 A Yes. 8 Q Did you know a Kristin L. Smith at that store 9 location? 10 A Dc" 't recall her. ] ] Q Did you know anybody or manager by the name of -- ] 2 first name of Paul at that location? 13 A I know who he is. 14 Q You do? 15 A Yes. 16 Q Is he still at that location? 17 A No, he's not. 18 Q Does he still work for Sheetz? ]9 A Yes, he does. 20 Q Do you know what location he's at? 2] A At Sheetz store 35], Hershey, Pennsylvania. 22 Q And when he was at the ] 95 store, do you know 23 what his duties and responsibilities were? 24 A Store manager. 25 Q Could be the one that told you about the claim" Page 18 - Pa!!e 21 A ~. I MARsHAll, DENNEHEY, WARNER, COLEMAN 8; GoG(,IN I www.ma.r.5halldC1Jnehey..~om 4e-XJ, ; 1".-1- RICIONAl DEFE"SE LITIGATION Q LAW FIRM PA."IN~Y.L\'Ar-llA :Elnbkhtm O,,.,IWl'WH F:,,~ l-lli.tt;;lilJit r.;e",":own5q~e Noni~.~~ rb,ihddphb ~'I~.I"'TI;h P!vl'lJ(ludlMett.mi S'nn~,',n - W"JIlimo.sPQI1 NJrW)mw."\" ClalrvHill ROloellrnl A Pl!tJFF.5f,ION~J, COllFORAiJON 620 West Germantown Pike, Ste 350 . Plymouth Meeting, P A 119462-1056 (610) 941-7900' Fax (610) 941-8133 January 12, 2005 D~All Wi.l~itOl:: Od.lO 1U::I'on F1.UJUDA f'i:.l1uder,h1e ]:iwonl'ille Orlando T1U:nr1 Direct Dial: (610) 941-7907 Email: asorce@mdwcg.com Paul F. D'Emilio, Esquire PULEO & D'EMILIO, LLC 660 Sentry Parkway Suite 210 Blue Bell, P A 19422 II RE: BORGOLINI v, OPW, et al Cumberland County CCP No. 04-3001 Our File; 12180-02278 Dear Mr. D'Emilio: My client is unable to answer the discovery propounded to it by you regarding the above captioned matter until they can inspect and view the product at issue. As a resl.lt, an extension of time to respond to your client's discovery is requested until such time as an inspection can be performed. Unless I hear from you otheIWise, I will assume that this e).'tension is granted and appreciate your anticipated cooperation in that regard. Please fell free to call me with any questions regarding this letter, January 21,2005 Dea:r Mr. Sorce: To the best of our knowledge, the "quipm'mt that y"u seek is in the possession "f the De~endant, Sheetz, I would app..-eciate if you would complete as much of the discovery you can nt this point and return it to this offi"e. As to any specific qt.estions that YOll have, you will need to look at the product. Please note that on the answer, we.have no problem with giving you an extension until such time as you can look ~t the produ"t. Very truly yOU~BJ Paul F. D'Emi1io, Esquire PFD/jmk , ' STEPHANIE E. CHERTOK, ESQUIRE ATTORNEY I.D. 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 (717) 249-8749 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. 16654 905 W. SPROUL ROAD SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLINI AND HIRAM BORGOILNI HUSBAND AND WIFE VS. : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA SHEETZ, INC. AND OPW ENGINEERED SYSTEMS AND OPW FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM : NO. 04-3001 : JURY TRIAL DEMANDED : CIVIL ACTION CERTIFICATE OF SERVICE I, Stephanie E. Chertok, Esquire, hereby certify that a tme and correct copy of the Plaintiffs' Motion for Partial Summary Judgment Against Defendant Sheetz and Defendant Keystone Petroleum in the above-titled matter has been served upon the following persons on the 6th day of July, 2005, by first-class U.S. Mail, postage prepaid: C. Roy Weidner, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 David F. White, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 620 Germantown Pike, Suite 350 Plymouth Meeting, PA 18426-1056 " . Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, I' A 17108 Step anie E. Chertok, Esquire Paul F. D'Emilio, Esquire Attorneys for Plaintiff '-0': Sk':. ti.~ ',~ ~ -{~l(,'_:_ ):'" t.~: .-7-" :2 (') ~ ..:. ~ "'" "'" "'" ~ I cr> <;?, ~ i:ll~ _('\"\"1 ;~~I~'i r,.. -:J ':;:,",-;\~') ,..'(.., ~-~~ 1"" :'l ? ::::. - 0! :s.:c- c.J't ~~.,) , ". r-..' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ... VICKIE D. BORGOLlNI AND HIRAM BORGOLINI HUSBAND AND WIFE 125 LINCOLN STREET MARYSVILLE, PA 17053 : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA , ~ NO. 04, .:1001 ~ ;Vf I VS. SHEETZ, INC. 6558 CARLISLE PIKE MECHANICSBURG, PA 17055 AND OPW ENGINEERED SYSTEMS 2726 HENKLE DRIVE LEBANON, OH 45209 AND OPW FUELING COMPONENTS 9393 PRINCETON.GLENDALE ROAD CINCINNATI, OHIO 45011 AND RICHARDS INDUSTRIES VALVE GROUP 129 MANUFACTURERS ROAD ROCKWOOD, TENNESSEE 37854 : JURY TRIAL DEMANDED AND KEYSTONE PETROLEUM 981 TRlNDLE ROAD WEST MECHANICSBURG. PA 17055 : CIVIL ACTION SUMMONS IN CIVIL ACTIOM TO: SHEETZ, INC. 6558 CARLISLE PIKE MECHANICSBURG. PA 17055 OPW ENGINEERED SYSTEMS 2726 HENKLE DRIVE LEBANON, OH 45209 ~ If!,..rilll. OPW FUELING COMPONENTS 9393 PRINCETON.GLENDALE ROAD CINCINNATI, OHIO 39017 RICHARDS. AN OPW COMPANY 129 MANUFACTURERS ROAD ROCKWOOD, TENNESSEE 37854 KEYSTONE PETROLEUM 981 TRINDLE ROAD WEST MECHANICSBURG, PA 17055 You are notified that the Plaintiffs have commenced an action against you. SEAL OF THE COURT p'Of,," I By: _ ~ku /fY} 1JJ;t At_ Deputy Prothonotary rT9 Date: June 28, 2004 ~ - vI ~ s- (,.j -..c Q ~ --- ~ -I-l "-t:J'c" U-\ LI'\ V', "'~ --= 9- (:> :'>'" /,:0 '1 -- ~. o @ :-~-, " , c", (.J ,/ ;",1 1.:.' ::~) SHERIFF'S RETURN - REGULAR CASE NO: 2004-03001 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BORGOLINI VICKIE D ET AL VS SHEETZ INC ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS KEYSTONE PETROLEUM was served upon , at 1143:00 HOURS, on the 13th day of July DEFENDANT at 981 TRINDLE ROAD WEST MECHANICSBURG, PA 17055 JOHN GABEL, PRESIDENT, by handing to ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS the , 2004 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 6.66 .00 10.00 .00 22.66 Sworn and Subscribed to before ;e.- me this )s'~ day of ~ ,2w'f A.D. n.I,-_ f2 7rkfk~ AOnC \.1 prothonotary,-j So Answers: .1Y "/L... .r~y.<'T^~r:A~ R. Thomas Kline 07/14/2004 STEPHANIE CHERTOK BY:~~ Deputy Sheriff ,'.j ~:r. \' ~e Jr" ,'i';;. i....' , '.-. t'f, SHERIFF'S RETURN - REGULAR ~ CASE NO: 2004-03001 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BORGOLINI VICKIE D ET AL VS ;, SHEETZ INC ET AL ';i,; DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon SHEETZ INC the DEFENDANT , at 1945:00 HOURS, on the 12th day of July , 2004 at 6558 CARLISLE PIKE MECHANICSBURG, PA 17055 by handing to TIMOTHY MCKENNA, SHIFT MANAGER ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So ?~~ 18.00 6.66 .00 10.00 .00 34.66 R. Thomas Kline 07/14/2004 STEPHANIE CHERTOK ~ ?:Z(~ Sworn and Subscribed to before By: "" meCk_~/~:~ day of A.D. I C Q~-' r thonotary ,~ Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 Wade D. Manley I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorm:ys for Keystone Petroleum Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3001 VICKIE D. BORGOLlNI and HIRAM BORGOLlNI, v. CIVIL ACTION - LAW JURY TRIAL DEMANDED SHEETZ, INC., OPN ENGINEERED SYSTEMS, OPN FUELING COMPONENTS, RICHARDS, AN OPN COMPANY and KEYSTONE PETROLEUM, Defendants PRAECIPE TO ENTER APPEARANCE AND RULE TO FILE COMPLAINT AND NOW; this 23rd day of July, 2004, enter our appearElnce for Defendant Keystone Petroleum and issue a rule to Plaintiffs to file a complaint within twenty (20) days of the date of service thereof, or suffer judgment of non pros. JOHNSON, DUFFIE BY~ C. Roy Weidner, Jr. IDNER RULE TO FILE COMPLAINT TO THE PLAINTIFFS: AND NOW; this:ll,....J1.....day of July, 2004, a Rule is hereby issued to you to file your complaint in the above-captioned action within twenty (20) days of the date of service hereof, or suffer judgment of non pros. :232670 22470-1794 CURTIS Ft LONG. PROTllO~ By:----.LL.~).,.;..,.J 1<.. ~ ~ CERTIFICA TE OF SEI~VICE AND NO~ this 23rd day of July, 2004, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties olf record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Paul F. D'Emilio, Esquire Puleo & D'Emilio, LLC 660 Sentry Parkway Blue Bell, PA 19422 Stephanie E. Chertok, Esquire 61 West Louther StreElt Carlisle, PA 17013 Sheetz, Inc. 6558 Carlisle Pike Mechanicsburg, PA 17055 OPW Engineered Systems 2726 Henkle Drive Lebanon, OH 45209 OPW Fueling Components 9393 Princeton-Glendale I~oad Cincinnati, OH 4501 'I Richards, An OPW Company 129 Manufacturers Road Rockwood, TN 37854 JOHNSON, DUFFIE, STEWART & WEIDNER BY:~~-'U~;~~: ~ . elle Hagy :232670 22740-1794 _J -< ,- . '" (~ ~ c> 'Tl --I ;Tj ;JJ , :B9 u. ~;! ~;~ :~:~ :~ri ( .l ~~ -c c... (.:.-~: " 1'0 en ') c.,) +- MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DAVID F. WHITE, ESQ. IDENTIFICATION NO.: 55738 620 W. Germantown Pike Suite 350 Plymouth Meeting, PA 19462 (610) 941-7900 Attorney for OPW ENGINEERED SYSTEMS and OPW FUELING COMPONENTS VICKIE D. BORGOLINI AND HIRAM BORGOLINI : v. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA SHEETZ, INC. OPW ENGINEERED SYSTEMS OPW FUELING COMPONENTS RICHARDS INDUSTRIES VALVE GROUP KEYSTONE PETROLEUM NO. 2004-3001-CIVIL TO THE PROTHONOTARY: Kindly enter my appearance as attorney for Defendants OPW ENGINEERED SYSTEMS and OPW FUELING COMPONENTS in the above captioned matter, ~~c_ DA . HuE:-dQ. Date: 7 /~~~?I o c. -~ ':..:", 4:.1 ~~;:J \-n\- ~ ~~\:'~-. (/:,:.,,'"- C~C:-. ~ ~ ~ C;-"J I \"V c'." " ;--', 'Y-C: 3 Q, :t-n rn-~ -0 -0 b ~"'f. :r:-tl 9:(:') ,;~')fn "::.-\ ",;.0 ':Z -0 ::; I":'? \"V oJ:) PULEO & D'EMILlO, LLC PAUL F. D'EMILlO, ESQUIRE ATTORNEY 1.0.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT 10: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717 .249.1177 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLlNI AND HIRAM BORGOLINI HUSBAND AND WIFE 125 LINCOLN STREET MARYSVILLE, PA 17053 VS. SHEETZ, INC. 6558 CARLISLE PIKE MECHANICSBURG, PA 17055 AND OPW ENGINEERED SYSTEMS 2726 HENKLE DRIVE LEBANON, OH 45209 AND OPW FUELING COMPONENTS 9393 PRINCETON-GLENDALE ROAD CINCINNATI, OHIO 45011 AND RICHARDS INDUSTRIES VALVE GROUP 129 MANUFACTURERS ROAD ROCKWOOD, TENNESSEE 37854 AND KEYSTONE PETROLEUM 981 TRINDLE ROAD WEST MECHANICSBURG. PA 17055 : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA : NO. 04-3001 CIVIL : JURY TRIAL DEMANDED : CIVIL ACTION COMPLAINT The Plaintiffs, Vickie D. Borgolini and Hiram Borgolini, by their attorneys Paul F. D'Emilio, Esquire and Stephanie E. Chertok, Esquire, brin~1 action upon a cause whereof the following is a statement: 1. Plaintiffs Vickie D. Borgolini, and her spouse, Hiram Borgolini, are adult individuals who currently reside at 125 Lincoln Street, Marysville, PA 17053, PA. 2. Defendant, Sheetz Inc. ("Sheetz"), is a corporation authorized to do business in the Commonwealth of Pennsylvania located and operatin~1 at 6558 Carlisle Pike, Mechanicsburg, PA 17055. At all times hereinafter mentioned Defendant, Sheetz owned and operated a convenience store and gas station at 6558 Carlisle Pike, Mechanicsburg , PA 17055. 3. Defendant, OPW Engineered Systems ("OPW Engineered") is a corporation organized and existing under the laws of the State of Ohio with its principal place of business at 2726 Henkle Drive, Lebanon, OH 45306. 4. Defendant, OPW Fueling Components ("OPW Fueling") is a corporation organized and existing under the laws of the State of Ohio with its principal place of business at 9393 Princeton-Glendale Road, Cincinnati, OH 45011. 5. At all times hereinafter mentioned, either Defendant OPW Fueling or OPW Engineered manufactured parts of pump no. 5 at the Sheetz gas station at 6558 Carlisle Pike, Mechanicsburg , PA 17055. 6. Defendant, Richards Industries Valve Group ("Richards") is a corporation organized and existing under the laws of the State of Tennessee with its principal place 2 of business at 129 Manufacturers Road, Rockwood, TN 37854. At all times hereinafter mentioned Defendant, Richards, manufactured parts of pump no. 5 at the Sheetz gas station at 6558 Carlisle Pike, Mechanicsburg , PA 17055. 7. Defendant Keystone Petroleum ("Keystone"), is a corporation authorized to do business in the Commonwealth of Pennsylvania with its principal place of business at 981 Trindle Road West, Mechanicsburg, PA 17055. At all times hereinafter mentioned Defendant, Keysltone sold and/or serviced the gas pump and pump nozzle #5 at the Sheetz gas station. 8. At all times hereinafter mentioned Defendants acted though their agents, workmen, servants and employees, then and there engaged in the business of the Defendants within the course and scope of their employment. 9. On or about June 27, 2002, the Plaintiff Vickie D. Borgolini drove up to pump #5 at the Sheetz gas station located at 6558 Carlisle Pike, Mechanicsburg , PA 17055 to fuel her automobile which had less than one-quarter of a tank of gasoline remaining. 10. The Plaintiff, Vickie D. Borgolini was in the process of fueling her vehicle when suddenly and without warning, the nozzle of the gas pump malfunctioned and the nozzle while still in her hand burst from the car with fuel spouting from it causing the injuries herein set forth. 11. The malfunction caused gasoline to spray the Plaintiff, Vickie D. Borgolini, saturating her chest and gushing directly onto her face and eyes. 12. At all times hereinafter mentioned Defendants knew, should have known and in the exercise of due care could have known that pump 110. 5 was malfunctioning or 3 defective. 13. By reason of the negligence of the Defendants, Plaintiff Vickie D. Borgolini, sustained serious first degree burns to her face, chest and also to her eyes, injury to her eyes, and severe shock and injury to her nerves and nervous system all of which caused the Plaintiff great pain and agony. 14. As a result of the injuries sustained Plaintiff has beE~n obliged to expend various sums of money for medicine and medical attention in endeavoring to cure herself of her said injuries and may well be compelled to expend additional sums in the future. 15. As a consequence of her injury, Plaintiff has in the past and may in the future be hindered, restricted and prevented from carrying on her usual and customary duties and occupation, wherefore she has lost the emoluments of said employment to her great financial damage and lost. Count I Negligence 16. Plaintiff incorporates all of the allegations contained in paragraphs 1 through 15 inclusive as fully as though the same were herein set forth at length. 17. The said occurrence was due to the negligence of the Defendants individually and through their agents, servants, workmen, and employees within the course and scope of their employment, in that they: a. failed to provide a safe pump and related parts of the pump systems (all referred as "Pump System") to its customer the Plaintiff Vickie D. Borgolini; b. failed to adequately check and inspect Pump System for signs of defects; c. failed to insure that the Pump System was in proper working order; 4 d. failed to recognize any defects with said Pump System; e. failed to provide protective devices and/or salfety features to prevent injuries; f. failed to provide safe Pump Systems; g. did distribute, supply, service, manufacture and sell the pump systems in a dangerous condition so as to cause injury to Plaintiff; h. did create and allow a dangerous condition by failing to provide proper instructions for handling of Pump Systems; I. failed to exercise the requisite degree of cam and caution in the distribution, manufacture, service, supply and sale of the Pump System; j. failed to take reasonable precautions to warn of the dangers to which Plaintiff was exposed when Defendant knew or should have known of the dangers; k. failed to warn Plaintiff what would be safe and sufficient usage of the Pump System; I. failed to attach a safety device that would prevent the aforesaid occurrence; m. failed to maintain the Pump System properly; n. Failed to use that degree of care, skill, foresight and caution required by the Laws of the Commonwealth of Pennsylvania and the United States of America relating to the manufacturing, distribution, service, supplying, sale and servicing of the Pump System. 18. At all times relevant hereto, the above-named Defendant's acted jointly and severally, and the Defendants are jointly and/or severally liable to the Plaintiffs. 5 Count II Strict Liability 19. Plaintiffs incorporate all of the allegations contained in paragraphs 1 through 18 inclusive as fully as though the same were herein and set forth at length. 20. Defendants are strictly liable to Plaintiffs as Follows: a. failure to properly, adequately and safely label their product or products; b. selling a product or products that was in a defective condition and was unreasonably dangerous for its intended use; and c. failure to give adequate and complete warnings of the known or knowable dangers involved in the use and exposure to the product or products. 21. At the time of the occurrence, Plaintiff was using the product as intended by Defendants. 22. The defective condition of the Pump System was the direct and proximate cause of Plaintiff's injuries. 23. Based upon the foregoing, Defendants are strictly liable to Plaintiffs under the principals of the Restatement of Torts. Count III Breach of Warranty 24. Plaintiffs incorporate all of the allegations contained in paragraphs 1 through 23 inclusive as fully as though the same were herein and set forth at length. 25. As a result of the foregoing Defendants are liable to the Plaintiffs for the breach of express and/or implied warranties that the product or products sold by them were 6 merchantable, fit for use, and suitable and fit for particular purpose under common law. 26. Defendants expressly and impliedly promised, covenant and warranted that their aforesaid Pump System, including all related components, would be merchantable, safe, free of hazards and fit for particular use and purpose, for which it was intended. 27. Plaintiff relied, to her detriment, upon the aforesaid promises, covenants, warranties and other representations of Defendants. 28. Defendants, by their aforesaid conduct, breached and/or violated the aforesaid expressed and/or implied warranties, promises and covenants, and their warranty of merchantability regarding the product thereby causing damage to Plaintiff, as a result whereof Defendants are liable to Plaintiffs for her damages. 29. Defendants by the aforesaid conduct, breached and/or violated their warranty and covenant that the Pump System was fit for the particular purpose for which it was intended thereby causing damage to Plaintiff, as a result whereof Defendants are liable to Plaintiff for her damages. 30. As a direct and proximate result of the breach of these express and implied warranties, Plaintiff suffered the injuries described above. 31. Defendants have been given timely notice of their aforesaid breach of warranty. Count IV Hiram Borgolini v. All Defendants 32. Plaintiff incorporates all of the allegations contained in paragraphs 1 through 31 inclusive as fully as though the same were herein and set forth at length. 33. Solely as a result of the negligence of the Defendants, Plaintiff has been and may and will in the future be deprived of the assistance and society of his wife, all of 7 which has been and will in the future be to her great financial damage and loss. WHEREFORE, Plaintiffs demand judgment against each Defendant jointly and severally on each Count, in an amount in excess of Twenty-Five Thousand and 00/100 Dollars ($25,000.00) together with interest, delay damages and costs of suit. CZ~~., Co-counsel for the Plaintiffs Puleo & D'Emilio, LLC Attorney ID #16654 660 Sentry Parkway, Blue Bell, F'a 19422 (610) 941-3600 ~tj, . &(;~ ~~ertok, Esquire Co-counsel for the Plaintiffs Attorney ID #52651 61 W. LOUlther St. Carlisle, PA 17013 (717) 249..1177 8 VERIFICATION Vickie D. Borgolini and Hiram Borgolini, Plaintiffs in the above-captioned matter verify that the facts contained in the foregoing Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. CS. Section 4904 relating to unsworn falsification to authol"ities. DATE: (J 7/sd /2Polf . ickie D. Borgolini Plaintiff DATE:~7/:!:'O/UU( , ~# H' am Borgolini . . Plaintiff 9 PULEO & D'EMILIO, LLC PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT ID: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717.249.1177 ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI HUSBAND AND WIFE NO. 04-3001 CIVIL VS. SHEETZ, INC. OPW ENGINEERED SYSTEMS OPW FUELING COMPONENTS RICHARDS INDUSTRIES VALVE GROUP KEYSTONE PETROLEUM : JURY TRIAL DEMANDED : CIVIL ACTION CERTIFICATION OF SERVICIE I, PAUL F. D'EMILlO, ESQUIRE, hereby certify that a true and correct copy of the Complaint in the above-entitled matter has been served upon the following persons on the tJ-M day of August, 2004 by first-class U.S. Mail, postage prepaid: C. Roy Weidner, Esquire Sheetz, Inc. Jefferson J. Shipman, Esquire 6558 Carlisle Pike, Johnson, Duffie, Stewart & Weidner Mechanicsburg, PA 17055 301 Market Street PO Box 109 Lemoyne, PA 17043-0109 Richards Industries Valve Group 129 Manufacturers Road Rockwood, Tennessee 37854 David F. White, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 620 West Germantown Pike, Suite 350 Plymouth Meetin~I, PA 19426-1056 Q:I F. 'Emilio, Esquire Attorney for Plaintiff 10 ,.~ , -., >-,-,) ~~~2 o --n --l -:1: 1"1 ~~~,:J ~,~:; -::~y '( ) (:J -- ~ - \1 ;~.',-,~ ';~~ , "\' ""<\ :.": , . (~") --. r~"? (n '_::;~ C~:; Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. I.D. No. 19530 Wade D. Manley I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Keystone Petroleum Plaintiffs IN THE COURT OF COMMON PLEAS OF ClIMBERLAND COUNTY, PENNSYLVANIA NO. 04-3001 CIVIL ACTION - LAW JURY TRIAL DEMANDED VICKIE D. BORGOLlNI and HIRAM BORGOLlNI, v. SHEETZ, INC., OPN ENGINEERED SYSTEMS, OPN FUELING COMPONENTS, RICHARDS, AN OPN COMPANY and KEYSTONE PETROLEUM, Defendants PRELIMINARY OBJEC1"ION OF KEYSTONE PETROLEUM TO PLAINTIFFS' COMPLAINT AND NOW, this .dt!! day of August, 2004, comes Defendant Keystone Petroleum, through its undersigned attorneys, and preliminarily objects to Plaintiffs' complaint upon the following: 1. Paragraph 17 of Plaintiffs' complaint contains the, following averments of negligence on the part of Defendants: n. Failed to use that degree of care, skill, foresight and caution required by the laws of the Commonwealth of P,ennsylvania and the United States of America relating to the manufacturing, distribution, service, supplying and sale and servicing of the Pump System. 2. Pa. R.C.P. No. 1019(a) requires that the material facts on which a cause of action or defense is based shall be stated in concise and summary form. 3. The above quoted subparagraph of paragraph 17 of Plaintiffs' complaint fails to comply with said rule. WHEREFORE, Defendant Keystone Petroleum moves that the above quoted subparagraph of paragraph 17 of Plaintiffs' complaint be stricken for failure to comply with rule of court or, alternatively, that an order be entered that Plaintiffs file a more specific complaint setting forth the facts that give rise to their claim that Defendants failed to use that degree of care, skill, fOrElsight and caution required by the Laws of the Commonwealth of Pennsylvania and the United States of America relating to the manufacturing, distribution, service, supplying, sale and servicing of the Pump System. :234317 22740-1794 JOHNSON, DUFFIE, STEWART & WEIDNER ~~~.- By-t--- c. Roy Weidner, Jr. CERTIFICA TE OF SERVICE AND NOW, this flt <#, day of August, 2004, the undersigned does hereby certify that she did this date serve a copy of the foregoing document 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: Paul F. D'Emilio, Esquire Puleo & D'Emilio, LLG 660 Sentry Parkway Blue Bell, PA 19422 Stephanie E. Ghertok, Esquire 61 West Louther Street Carlisle, PA 17013 Sheetz, Inc. 6558 Carlisle Pike Mechanicsburg, PA 170Ei5 OPW Engineered Systems 2726 Henkle Drive Lebanon, OH 45209 OPW Fueling Components 9393 Princeton-Glendale Road Cincinnati, OH 45011 Richards, An OPW Company 129 Manufacturers Road Rockwood, TN 37854 JOHNSON, DUFFIE, STEWART & WEIDNER :234317 22740-1794 By: ~(j;~'/4 #~~/ 'fiehelle Hagy ..'OtT) IJ)\_\.' 7-(-. (II":. \t'i~) :PC; '7;, ::<. q ~ ..c:" ~ ~ """ e::. G' <.0') c::> ~ Q. .-\ :1- -n r"c- -om ~~ -r:~ (th ,y'o .---, ~ :c<:: - - - '" PULEO & D'EMILlO, LLC PAUL F. D'EMILIO, ESQUIRE ATTORNEY 1.0.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT 10: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717 -249-1177 ATTORNEYS FOR PLAINTIFIFS VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI VS. : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA SHEETZ, INC. OPW ENGINEERED SYSTEMS OPW FUELING COMPONENTS RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : NO. 04-3001 CIVIL "-> c::) 0 ~ -n U'~ --t r;"j -r .'U fi,Z1 u. };t!) ANSWER OF PLAINTIFF TO THE cC. a c:J eL, PRELlMI~~R:L~I~~~;:'~~~~~D~~Yg6~~~~~~ROLEUM .... ~= f~i;~ Plaintiffs by their attorneys Paul F. D'Emilio, Esquire and Stephanie E. Chert6( E~ir~ n f~ CIVIL ACTION , : JURY TRIAL DEMANJllEO answer the Preliminary Objections of Keystone Petroleum and set forth as follows: 1. Admitted. 2-3. Rule Pa. R.C.P. No. 1019(a) speaks for itself. However, the material facts on which the cause of action is based are pleaded in paragraphs 1-13 of the Amended Complaint, and a true and correct copy of those allegations are attached hereto, made part hereof and marked Exhibit "A." WHEREFORE, Plaintiffs demand judgment against eacl, Defendant jointly and severally on each Count, in an amount in excess of Twenty-Five Thousand and 00/100 Dollars ($25,000.00) together with interest, delay damages as costs of suit. ~m Co-counsel for Plaintiffs Attorney ID #52651 61 W. Louther Street Carlisle, PA 17013 717-249-11?7 I , qu e Co-counsel for Plaintiffs Puleo & D'Emilio, LLC Attorney ID #16654 660 Sentry Parkway, Ste. 210 Blue Bell, PA 19422 610-941-3600 PULEO & D'EMILIO, LLC PAUL F. D'EMILlO, ESQUIRE ATTORNEY I.D.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT ID: 52651 61 WEST LOUTHER STREET CARLISLIE, PA 17013 717-249-1177 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI VS. : II~ THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA SHEETZ, INC. OPW ENGINEERED SYSTEMS OPW FUELING COMPONENTS RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : NO. 04-3001 CIVIL : CIVIL ACTION : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE; I, PAUL F. D'EMILlO, ESQUIRE, hereby certify that a true and correct copy of Answer of Plaintiff to Preliminary Objections of Keystone Petroleum to Plaintiffs Amended Complaint in the above-entitled matter has bee,n served upon the following persons on the 't day of September, 2004 by first-class U.S. Mail, postage prepaid: C. Roy Weidner, Jr., Esquire Johnson, Duffie, Stewart & Weidner, P.C. 301 Maket Street PO Box 109 Lemoyne, PA 17043-0109 David F. White, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 19426-1056 Kevin C. McNamara, Esquir,e Thomas, Thomas & Haffer, LLP PO Box 999, Harrisburg, PA 17108 aJiir4 Paul F. D'Emilio, Esquire Co-counsel for Plaintiff EXHIBIT "A" , '. PULEO & D'EMILlO, LLC PAUL F. D'EMILlO, ESQUIRE ATTORNEY 1.0.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT 10: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717.249.1171 ATTORNEYS FOR PLAINTIFFS '" t.~;.:l 0 ?= -'1'1 :::r:.'I>o --t ~~5 ~ F1 ."('Jrn .~v? ~'::i (:J ~:l" -T-'1", ~u S;,-:~ i:~ : IN THE COURT OF CO'MMdN' :=:j 1~, : PL.EAS OF CUMBERLAND g; :'2 : COUNTY PENNSYLVANIA VICKIE D. BORGOLINI AND HIRAM BORGOLlNI HUSBAND AND WIFE 125 LINCOLN STREET MARYSVILLE, PA 17053 VS. SHEETZ, INC. 6558 CARLISLE PIKE MECHANICSBURG, PA 17055 AND OPW ENGINEERED SYSTEMS 2726 HENKLE DRIVE LEBANON, OH 45209 AND OPW FUELING COMPONENTS 9393 PRINCETON.GLENDALE ROAD CINCINNATI, OHIO 45011 AND RICHARDS INDUSTRIES VALVE GROUP 129 MANUFACTURERS ROAD ROCKWOOD, TENNESSEE 37854 AND KEYSTONE PETROLEUM 981 TRINDLE ROAD WEST MECHANICSBURG. PA 17055 : NO. 04.3001 CIVIL : JURY TRIAL DEMANDED : CIVIL ACTION COMPLAINT The Plaintiffs, Vickie D. Borgolini and Hiram Borgolini, by their attorneys Paul F. D'Emilio, Esquire and Stephanie E. Chertok, Esquire, bring action upon a cause whereof the following is a statement: 1. Plaintiffs Vickie D. Borgolini, and her spouse, Hiram Borgolini, are adult individuals who currently reside at 125 Lincoln Street, Marysville, PA 17053, PA. 2. Defendant, Sheetz Inc. ("Sheetz"), is a corporation authorized to do business in the Commonwealth of Pennsylvania located and operatin~l at 6558 Carlisle Pike, Mechanicsburg, PA 17055. At all times hereinafter mentioned Defendant, Sheetz owned and operated a convenience store and gas station at 6558 Carlisle Pike, Mechanicsburg , PA 17055. 3. Defendant, OPW Engineered Systems ("OPW Engiineered") is a corporation organized and existing under the laws of the State of Ohio with its principal place of business at 2726 Henkle Drive, Lebanon, OH 45306. 4. Defendant, OPW Fueling Components ("OPW Fueling") is a corporation organized and existing under the laws of the State of Ohio with its principal place of business at 9393 Princeton-Glendale Road, Cincinnati, OH 45011. 5. At all times hereinafter mentioned, either Defendant OPW Fueling or OPW Engineered manufactured parts of pump no. 5 at the Sheetz gas station at 6558 Carlisle Pike, Mechanicsburg , PA 17055. 6. Defendant, Richards Industries Valve Group ("Richards") is a corporation organized and existing under the laws of the State of Tennessee with its principal place 2 ; of business at 129 Manufacturers Road, Rockwood, TN 3,7854. At all times hereinafter mentioned Defendant, Richards, manufactured parts of pump no. 5 at the Sheetz gas station at 6558 Carlisle Pike, Mechanicsburg , PA 17055. 7. Defendant Keystone Petroleum ("Keystone"), is a corporation authorized to do business in the Commonwealth of Pennsylvania with its principal place of business at 981 Trindle Road West, Mechanicsburg, PA 17055. At all times hereinafter mentioned Defendant, Keystone sold and/or serviced the gas pump and pump nozzle #5 at the Sheetz gas station. 8. At all times hereinafter mentioned Defendants acted though their agents, workmen, servants and employees, then and there engagled in the business of the Defendants within the course and scope of their employment. 9. On or about June 27, 2002, the Plaintiff Vickie D. Borgolini drove up to pump #5 at the Sheetz gas station located at 6558 Carlisle Pike, Mechanicsburg , PA 17055 to fuel her automobile which had less than one-quarter of a tank of gasoline remaining. 10. The Plaintiff, Vickie D. Borgolini was in the process of fueling her vehicle when suddenly and without warning, the nozzle of the gas pump malfunctioned and the nozzle while still in her hand burst from the car with fuel spouting from it causing the injuries herein set forth. 11. The malfunction caused gasoline to spray the Plaintiff, Vickie D. Borgolini, saturating her chest and gushing directly onto her face and eyes. 12. At all times hereinafter mentioned Defendants knew, should have known and in the exercise of due care could have known that pump no. 5 was malfunctioning or 3 . . defective. 13. By reason of the negligence of the Defendants, Plaintiff Vickie D. Borgolini, sustained serious first degree burns to her face, chest and also to her eyes, injury to her eyes, and severe shock and injury to her nerves and nervous system all of which caused the Plaintiff great pain and agony. 14. As a result of the injuries sustained Plaintiff has been obliged to expend various sums of money for medicine and medical attention in endeavoring to cure herself of her said injuries and may well be compelled to expend additional sums in the future. 15. As a consequence of her injury, Plaintiff has in the past and may in the future be hindered, restricted and prevented from carrying on her usual and customary duties and occupation, wherefore she has lost the emoluments of said employment to her great financial damage and lost. Count I Negligence 16. Plaintiff incorporates all of the allegations contained in paragraphs 1 through 15 inclusive as fully as though the same were herein set forth at length. 17. The said occurrence was due to the negligence of the Defendants individually and through their agents, servants, workmen, and employees within the course and scope of their employment, in that they: a. failed to provide a safe pump and related parts of the pump systems (all referred as "Pump System") to its customer the Plaintiff V,ickie D. Borgolini; b. failed to adequately check and inspect Pump System for signs of defects; c. failed to insure that the Pump System was in proper working order; 4 \,\,c ~ G~\\'\O 'GSo.'U\~ &. Q'~ ...0. ~ 7....0 \$0 (f~""~ ,,,," S,,"~ "'~~ . ,\. f. i ,ll.ll "",~i, ' of CO I!<O ,"'.'~"i ~ ~.." CO"" ",e~"V' I!<~ ~ \.\- ~ ~ ' < ,~ ,"~S of c" .~S'l\.'" ,.,~ "~V'",,ffS '" eo"eP\.'~' '" ~~~ ~~" ~iS fO I!<O "'~ '" ..$0' ,,~~ O\'\~\ III '. ~o. '\ fOO~G 'tl\~~ '. ',p.~Q ~ 'S. .... ~pII-<JOO /IoC'pll-O SiS'~"'S '. ,,,,,i """,-0 '";, ~~~~Q ~s ". Ci,\O~ "" J,.~G\~ p.~Q O~~O~~~ G~O~{? 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",{'(Ie'\l e\ec'i.\-Je 'fo..\o'\l~' se ~s 'I.o{ \ 6 \'\1 \'fIe s ~e ~o . ~ s~e'O ~\s\e f.,\s\0 ",e{, '" 'l'l'fl\c s 'Os '1::,'0 C'O 'fIo'l'le (\\9.\1\\' '0\\ 'i.\{'(Ie ' . '0\ ro~ .. Co{'(l'< \'1- '0\ \'0\\0'\1 6eu c,'fIee ' 'OS S ",{'(Ief' 0.?J(\\ ~ '30'\10. g 0'0'1.'0'\1 s\o{e " \ \'fIe \e'\lce \'fI'O ((>1'0'\1 0. '0 cO o~e{'O\e :. f30' e(\\\te '\(\e "e'=' ~ ~\0'o ,e .. o '?J.(\U ~(\e ~(\\, 0 . v,=,'Oo,)tQ.' ~'?J.(\~ lev .-"", ~ l -" /" ,/ I J ~/ I "" ~"".~ /' /' I / / : PULEO & D'EMILlO, LLC PAUL F. D'EMILlO, ESQUIRE ATTORNEY 1.0.# 16654 660 SEIIlTRY PARKWAY, SUITE 210 BLUE BI:::LL PA 19422 610-941-3600 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT 10: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717 -249-1177 ATi"ORNEYS FOR PLAINTIFFS VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI HUSBAND AND WIFE : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA VS. SHEETZ, INC. AND OPW ENGINEERED SYSTEMS AND OP"" FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM : NO. 04-3001 JURY TRIAL DEMANDED CIVIL ACTION ANSWER TO PRELIMINARY OBJECTIONS OF DEFENDANT SHEETZ. INC. TO THE AMENDED COMPLAINT Plaintiffs, by their attorneys, Paul F. D'Emilio, Esquire and Stephanie E. Chertok, Esquire, answer the Preliminary Objections of the Defendant Sheetz, Inc. to Plaintiffs' Amended Complaint and set forth as follows: 1-3. Admitted in part and Denied in part. To the extent that Defendant Sheetz has selectively recited portions of the Amended Complaint, the allegations are admitted; however, the portions selected to be restated by the Defendant do not include the entire Amended Complaint, which speaks for itself. The Amended Complaint further alleges that the Defendant Sheetz, at all times, as listed in the Amended Complaint, owned and operated a convenience store and gas station at 6558 Carlisle Pike, Mechanicsburg, 1 Pennsylvania 17055. Further, that Sheetz knew, should have known, and in the exercise of due care could have known, that a pump was malfunctioning or defective, and that by reason thereof, Plaintiff Vickie D. Borgolini sustained serious first-degree burns to her face and chest and injury to her eyes and severe shock and injury to her nerves and nervous system. ANSWER TO MOTION TO STRIKE/MOTION FOR A MORE SPECIFIC PLEADING 4-6. Denied. The Rules of Civil Procedure speak for themselves. 7. Admitted in part and Denied in part. It is admitted that Plaintiffs have recited subparagraph 17(i). 8. Admitted. It is admitted that Plaintiffs have recited subparagraph 17(n). 9. Denied. It is specifically denied that subparagraphs 17(i) and (n) violate the fact pleading principles of Rule 1019(a). On the contrary, the facts that give rise to the cause of action are listed in paragraphs 1 through 15, which paragraphs are specifically incorporated by reference in Count I entitled Negligence, Count II entitled Strict Liability and Count III entitled Breach of Warranty. 10. Denied. It is specifically denied that the allegations are boilerplate. On the contrary, Paragraphs 17(i) and 17(n) specifically refer to the facts that are set forth in paragraphs 1 through 15 of the Amended Complaint. Each allege negligence in the "distribution, manufacturer, service, supply and sale" of the Pump System. Paragraph 12 alleges that the Defendant Sheetz "At all times hereinafter mentioned Defendants knew, should have known and in the exercise of due care could have known that pump no. 5 was malfunctioning or defective." Clearly Defendant Sheetz is put on notice in the pleadings of the issues and allegations of negligence necessary to allow Sheetz to 2 reply. It is the preliminary objections that are unnecessary and boilerplate. 11-12. Denied. The allegations are conclusions of fact and law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiffs respectfully request Your Honorable Court dismiss the Preliminary Objections of the Defendant Sheetz, Inc. to the Amended Complaint. teph nie E. Chertok, Esquire Co-Counsel for Plaintiffs aul F. D' milio, Esquire Co-Counsel for Plaintiffs 3 PULEO & D'EMILlO, LLC PAUL F. D'EMILlO, ESQUIRE ATTORNEY 1.0.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 610-941-3600 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT 10: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717 _249-1177 ATTORNEYS FOR PLAINTIFFS : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI HUSBAND AND WIFE VS. SHEETZ, INC. AND OPW ENGINEERED SYSTEMS AND OPW FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM : NO. 04-2798 JURY TRIAL DEMANDED CIVIL ACTION MEMORANDUM OF LAW CONTRA THE PRELIMINARY OBJECTIONS OF DEFENDANT SHEETZ. INC. Statement of Fact On June 27, 2002 Plaintiff Vickie D. Borgolini drove up to a pump at the Sheetz gas station at 6558 Carlisle Pike, Mechanicsburg, PA to fuel her automobile. Ms. Borgolini was in the process of fueling her vehicle when suddenly and without warning the nozzle of the gas pump malfunctioned and the nozzle, while still in her hand, burst from the car, the fuel spouting from it, causing her injuries. The malfunction caused gasoline to spray all over her, saturating her chest and gushing directly into her face and eyes. At all times Defendant Sheetz was in possession and control of the 4 instrumentality that caused the harm. Plaintiff was a customer business invitee. The Amended Complaint specifically alleges in paragraph 12 that the Defendant knew, should have known or in the exercise of due care could have known that the pump was malfunctioning or defective. Plaintiffs alleges that the Defendant failed to keep safe the "pump system," which includes the pump itself and its related parts, for the use of Sheetz's customer and business invitee, Plaintiff Vickie D. BorgolinL Plaintiffs allege three (3) causes of action: Negligence, Strict Liability and Breach of Warranty. In each Count, Plaintiffs incorporated by reference all of the facts contained in paragraphs 1 through 15 inclusive of the Amended Complaint. ARGUMENT It is true that Plaintiffs must plead the material facts upon which the cause(s) of action or defense are based in a concise and summary form. However, the material facts upon which a cause of action is premised need only be pleaded with sufficient specificity to set forth the prima facia elements of the cause of action alleged. 3 Standard Pennsylvania Practice 2d!i 16:63. The Court has brought discretion in determining the amount of detail that must be averred, since the standard of pleading set forth in the Procedural Rules (Le., that the material facts on which a cause of action must be stated in a concise and summary form) is incapable of precise measurement and depends largely on the circumstances of each case. 4 Standard Pennsylvania Practice 2d !i 21 :39. In its Negligence Count Plaintiffs have alleged all the elements of a cause of action for negligence: 5 1) the Defendant Sheetz owed a duty to Plaintiff Vickie D. Borgolini its customer and business invitee; 2) Defendant breached that duty; 3) a causal relationship existed between the breach and the resulting injury suffered by the Plaintiffs; and 4) that there was actual loss. Mahan v. Am-Gard, Inc., 841 A.2d 1052 (2003). Defendant Sheetz owed Plaintiff the highest duty of care. As one who holds his property open to business invitees, the Defendant Sheetz must possess and exercise the knowledge of the dangerous qualities of the place itself and the appliances provided thereon, which necessarily entails a duty of reasonable inspection to ensure the safety of the premises. Lonsdale v. Joseph Horne Co., 587 A.2d 810 (1991). Defendant's reliance upon the case of Connor v. Allegheny General Hospital, 461 A.2d 600 (1993) is misplaced. The allegation of negligence in Connor was "in otherwise failing to use due care and caution under the circumstances." That is not the allegation in subparagraphs 17(i) or 17(n). The allegations in the Amended Complaint are specific and relate to the "distribution, manufacture, service, supply and sale" of the Pump System. i. failed to exercise the requisite degree of care and caution in the distribution. manufacture. service. sUDDlv and sale of the Pump System; n. Failed to use that degree of care, skill, foresight and caution required by the Laws of the Commonwealth of Pennsylvania and the United States of America relating to the manufacturina. distribution. service. sUDDlvina. sale and servicina of the Pump System. (Complaint ~17(i) and ~17(n) Emphasis added) and that at all times hereinafter mentioned Defendants knew, should have known and in the exercise of due care could have known that pump no. 5 was malfunctioning or defective. Complaint ~ 12. 6 The allegations specifically relate to the Pump System and the nature of the negligence alleged. They are not boilerplate. It is not the function of a pleading to be an all-inclusive narrative of events underlying a claim or defense; a party need only plead those material facts necessary to sustain a recovery or defense which at the same time enables an opponent to respond. Goodrich, ~ 1019(a):4 The requirements of Rule 1 019(a) are satisfied if the allegations in the pleading contain averments of all facts that a party will eventually have to prove in order to prevail, and those facts are sufficiently specific so as to enable the party served to prepare a response. A trial court has broad discretion in determining the amount of detail that must be averred in a pleading, since the standard of pleading set forth in Rule 1019 is incapable of precise measurement. At a minimum a pleader must set forth concisely the facts upon which his or her cause of action or defense is based. Thus, in the context of a negligence action, it is fundamental that a Plaintiff establish the duty owed by a Defendant, the breach of which might give rise to injuries alleged to be suffered by the Plaintiff. Goodrich, ~ 1019(a):9 Plaintiff has alleged all facts that it must prove in order to prevail. Those facts adequately inform Defendant of the issues and of all the issues it must meet. Lastly, nowhere in the Defendant's Brief does it cite one case to support its claim that subparagraph 17(i) and 17(n) are "boilerplate" or in any other way defective. The allegations are clear and concise. WHEREFORE, Plaintiffs respectfully request Your Honorable Court dismiss the Prelim,",,,, Obj,,"o", of !he """ada,, SheeG~~alaf Paul F. D'Emilio, Esquire CO-Counsel for Plaintiff 7 PULEO & D'EMILlO, LLC PAUL F. D'EMILlO, ESQUIRE ATTORNEY I.D.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 610-941-3600 ATTORNEYS FOR PLAINTIFFS STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT ID: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717-249-1177 VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI : IN THE COURT OF COMMON HUSBAND AND WIFE : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA VS. SHEETZ, INC. : NO. 04-3001 AND OPW ENGINEERED SYSTEMS AND OPW FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP JURY TRIAL DEMANDED AND KEYSTONE PETROLEUM CIVIL ACTION CERTIFICATION OF SERVICE I, PAUL F. D'EMILlO, ESQUIRE, hereby certify that a true and correct copy of Plaintiffs' Answers to Preliminary Objections of Defendant Sheetz, Incjn the above- entitled matter has been served upon the following persons on the ~'Qt day of September, 2004 by first-class U.S. Mail, postage prepaid: Kevin C. McNamara, Esquire Laura A. Gargiulo 305 N. Front Street PO Box 999 Harrisburg, PA 17108-0999 David F. White, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 19426-1056 Richards Industries Valve Group 129 Manufacturers Road Rockwood, TN 37854 C2 Paul . D'Emilio, Esquire Co-Counsel for Plainitffs C.Roy Weidner, Esquire Jefferson J. Shipman, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street PO Box 109 Lemoyne, PA 17043-0109 8 o r-'..' :':; =< ......, c;;C.) 0;;:.;,;;:) .~- (/) ;-'"1 '-'{j r,,) U) o -., ....., :r - ni':'1J r- -Orn :!)CJ () .1 '~IC) ~,;~~ ~~ (51"'1'1 ..,1 J:"'" ~11 -< ~ :::;: '2 (..;"'" PRAECIPE FOR LISTING CASE FOR .ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next: o Pre-Trial Argument Court ~ Argument Court ************************************************************************************************* CAPTION OF CASE (entire caption must be stated in full) VICKIE D. BORGOLlNI and HIRAM BORGOLlNI, (Plaintiffs) vs. SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS, AN OPW COMPANY and KEYSTONE PETROLEUM, (Defendants) No. 04-3001 Civil 1. State matter to be argued (i.e., Plaintiff's motion for nl9W trial, Defendant's demurrer to complaint, etc.): Defendant Keystone Petroleum's preliminary objections to Plaintiffs' complaint. 2. Identify counsel who will argue case: a) For Plaintiff: Address: Paul F. D'Emilio, Esquirl9 660 Sentry Parkway, Blue Bell, PA 19422 Co-Counsel for Plaintiff: Address: Stephanie E. Chertok, Esquire 61 West Louther Street, Carlisle, PA 17013 b) For Defendant: Address: Wade D. Manley, Esquire 301 Market Street, Lemoyne, PA 17043 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: November 10, 2004 Call of Argument List Date: Dated: -1'1(,:lot/ ~.",..--- - ------ . . oy Weidner, Jr. Wade D. Manley Attomeys for Keystone Petroleum :237016 ,,) c...;. ~ (""j ~:? "':-/1 C <-, -,1 ..t::.... TO: ALL PARTIES YOU ARE HEREBY NOTI]~IED TO PLEAD T 'I1IE ENCLOSED NEW MATTER AND NEW MATTER CR LAIM WITHIN 20 DAYS FROM THE SERVICE HE]]IE~ A FAULT JUDGMENT MAYBE NST YOly MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: DAVID F. WHITE, ESQ.lADAM M. SORCE, ESQ. IDENTIFICATION NO. 55738 ATTORNEYS FOR DEFENDANTS 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 19462 (610) 941-7900 COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA VICKIE D. BORGOLINI and HIRAM BORGOLINI, h/w V. SHEETZ, INC. OPW ENGINEERED SYSTEMS OPW FUELING COMPONENTS RICHARDS INDUSTRIES VALVE GROUP: and KEYSTONE PETROLEUM NO. 04-3001 CIVIL ANSWER, NEW MATTER AND NEW MATTI~R CROSSCLAIM OF DEFENDANTS, OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, AND RICHARDS INDUSTRIES VALVE GROUP, TO PLAINTIFFS' AMENDED COMPLAINT I. Denied. After reasonable investigation, answering Defendants are without information or knowledge as to the truth or falsity of the averments contained in this paragraph and due proof is demanded at the time of trial. 2. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are directed to a party or parties other than answering Defendants and, therefore, no answer is required. 3. Admitted. 4. Admitted. 5. Denied as stated. It is denied that Defendant, OPW Engineered Systems, manufactured any type of product that could be involved in this incident. In regard to the allegation contained in this paragraph that OPW Fueling Components may have manufactured a part of the subject pump, please be advised, that aft:er reasonable investigation, answering Defendants can neither admit nor deny this allegation. Discovery is continuing. Answering Defendartts have not yet had an opportunity to investigate or inspect the subject part or pump or accident scene. 6. Admitted that Defendant, Richards Industries Valve Group, is located as alleged. After reasonable investigation, answering Defendants can neither admit nor deny the remaining averments contained in this paragraph as they have not had an opportunity to inspect the parts, the pump or the accident scene. Discovery is continuing. 7. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are directed to a party or parties other than the answering Defendants and, dlerefore, no answer is required. 8. Denied as a conclusion of law. To the extent the allegations of this paragraph are other than conclusions of law, strict proof is demartded at the time of trial. 9. Denied. After reasonable investigation, answering Defendants are without information or knowledge as to the truth or falsity of the averments contained in this paragraph and due proof is demanded at the time of trial. 10. Denied. After reasonable investigation, answenng Defendants are without information or knowledge as to the truth or falsity of the averments contained in this paragraph and due proof is demartded at the time of trial. II. Denied. It is specifically denied that there was any malfunction caused by any of the answering Defendants. 12. Denied. It is denied that answering Defendants knew or should have known that there was any type of malfunction with the subject pump as alleged in this paragraph. 13. Denied. It is denied that answering Defendants were negligent in any manner whatsoever and it is denied that answering Defendants caused any harm to the Plaintiff or to any parties in this matter. 14. Denied. It is denied that answering Defendants were ne'gligent in any manner whatsoever and it is denied that answering Defendants caused any harm to the Plaintiff or to any parties in this matter. 15. Denied. It is denied that answering Defendants were m:gligent in any manner whatsoever and it is denied that answering Defendants caused any harm to the Plaintiff or to any parties in this matter. COUNT I NEGLIGENCE 16. Answering Defendants incorporate herein its answers to Paragraphs 1 through 15 as though fully set forth herein at length. 17. Denied. All allegations of negligence contained in ~his paragraph and in subparagraphs are denied. The remaining averments contained in this paragraph and its subparagraphs are denied as conclusions oflaw. No response is required. 18. Denied as a conclusion of law. To the extent the alle'gations of this paragraph are other than conclusions oflaw, strict proof is demanded at the time of trial. COUNT II STRICT LIABILITY 19. Answering Defendants incorporate herein its answers to Paragraphs 1 through 18 as though fully set forth herein at length. 20-23. Denied as a conclusion of law. To the extent the all(:gations of this paragraph are other than conclusions oflaw, strict proof is demanded at the time of trial. COUNT III BREACH OF WARRANTY 24. Answering Defendants incorporate herein its answers to Paragraphs I through 23 as though fully set forth herein at length. 25-31. Denied as a conclusion oflaw. To the extent the allegations of this paragraph are other than conclusions oflaw, strict proof is demanded at the time of trial . COUNT IV HIRAM BORGOLINI v. ALL DEFENDANTS 32. Answering Defendants incorporate herein its answers to Paragraphs I through 31 as though fully set forth herein at length. 33. Denied. It is denied that Answering Defendants are negligent in any manner. It is denied that Answering Defendants caused any injury or hann to any ofthe parties in this case. WHEREFORE, Answering Defendants, OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group, demand judgment in their favor, plus interest and costs. NEW MATTER 34. Answering Defendants repeat their responses to the allegations contained within paragraphs I through 33 and incorporates the same as though set forth fully at length herein. 35. Plaintiffs' Amended Complaint fails to state a cause of action or claim upon which relief can be granted. 36. Plaintiffs' claims may be barred III whole or in part by contributory negligence and/or comparative negligence. 37. Plaintiffs' claims may be barred by the doctrine of assumption of risk and/or Plaintiffs' assumption of a known risk may reduce the amount which would otherwise be recoverable. 38. The accident, incident, injuries and/or damages as alleged in Plaintiffs' Amended Complaint are not the result of any negligent conduct on the part of Answering Defendants. 39. Plaintiffs' claims may be barred and/or limited by the statute oflimitations. 40. Answering Defendants are not responsible for persons, events, circumstances or conditions reasonably beyond their control. 41. Plaintiffs' claims may be barred and/or limited by the doctrine of release. 42. Any injuries and/or damages sustained by Plaintiffs may be the result of acts and/or omissions of individuals and/or entities over which Answering Defendants had no control and/or right of control. 43. Plaintiffs may lack standing to bring the causes of action and/or claims for the damages alleged. 44. Plaintiffs' claims may be barred by settlement. 45. Plaintiffs' claims may be barred by waiver. 46. Any claims for delay damages may be determined to be unconstitutional. NEW MATTER CROSSCLAIM AGAINST CO-DEFENDANTS. SHEETZ. INC. AND KEYSTONE PETROLEUM I. As this is a first notice lawsuit and Answering Defendants have not had an opportunity to inspect the pump, part or accident site, Answering Defendants reserve the right to crossclaim at a later date. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN ~.. DA . ITE QUIRE AM M. SORCE, ESQUIRE Attorneys for Defendants, OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group ~ BY; DATE: \24_A \LIABIDEWlLLPG\6JJ722\TMP24\12180\02278 VERIFICATION David F. White, Esquire, Attorney for Defendants, OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group, verifies that the facts set forth in the Answer with New Matter and New Matter Crossclaim of Defendants, OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group, to Plaintiffs' Amended Complaint are true to the best of his knowledge, information and belief. If the above statements are not true, the deponent is subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities. ~~d DATE: MARSHALL,DENNEHEY,WARNER, COLEMAN & GOGGIN BY: DAVIDF. WHITE, ESQ. IDENTIFICATION NO. 55738 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 1946~ (610) 941-7900 ATTORNEY FOR DEFENDANTS VICKIE D. BORGOLINI and HIRAM BORGOLINI, h/w COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA v. SHEETZ, INC. OPW ENGINEERED SYSTEMS OPW FUELING COMPONENTS RICHARDS INDUSTRIES VALVE GROUP: and KEYSTONE PETROLEUM NO. 04-3001 CI\'lL CERTIFICATE OF SERVICE I, David F. White, Esquire, do hereby certifY that a true and correct copy of Answer with New Matter and New Matter Crossclaim of Defendants, OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group, to Plaintiffs' Amended Complaint, was served upon all parties by first class mail on the )~ay of ()~ at the following addressees: Paul F. D'Emilio, ESQ. PULEO & D'EMILIO, LLC 660 Sentry Parkway, Suite 210 Blue Bell, PA 19422 C. Roy Weidner, Jr., Esq. Wade D. Manley, Esq. JOHNSON DUFFIE STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Stephanie E. Chertok, Esquire 61 West Louther Street Carlisle, PA 17013 Sheetz, Inc. 6558 Carlisle Pike Mechanicsburg, P A 17055 J''-., \24_ A \LIABIDEWlLLPG\6JJ722\TMP24\12180\02278 ~~ DA . ,ESQ t . Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. LD. No. 19530 Wade D. Manley LD. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Keystone Petroleum Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3001 VICKIE D. BORGOLlNI and HIRAM BORGOLlNI, v. CIVIL ACTION - LAW SHEETZ, INC., OPN ENGINEERED SYSTEMS, OPN FUELING COMPONENTS, RICHARDS, AN OPN COMPANY and KEYSTONE PETROLEUM, JURY TRIAL DEMANDED Defendants KEYSTONE PETROLEUM'S REPL Y 'TO NEW MA TTER AND NOW, this __Y of October, 2004, comes Defendant Keystone Petroleum, through its undersigned attorneys, and replies to the new matter of Defendants OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group as follows: 34. - 37. Denied. These averments are deemed denied as conclusions of law to which no responsive pleading is required. 38. Denied. 39. Denied. These averments are deemed denied as conclusions of law to which no responsive pleading is required. 40. Denied. 41. Denied. These averments are deemed denied as conGlusions of law to which no responsive pleading is required. I. . 42. Denied. 43. - 46. Denied. These averments are deemed denied as conclusions of law to which no responsive pleading is required. WHEREFORE, Defendant Keystone Petroleum demands judgment in its favor. NEW MA TTER CROSS CLAIM AGAINST CO-DEFENDANTS SHEETZ, INC. AND KEYSTONE PETROLEUM 1. Denied. WHEREFORE, Defendant Keystone Petroleum demands judgment in its favor. JOHNSON, DUFFIE, STEWART & WEIDNER :238039 22740-1794 VERIF/CA TION The undersigned says that the facts set forth in the foreg1oing are true and correct. This verification is made subject to the penalties of 18 Pat C.S.A. ~ 4904, relating tc> unsworn falsifications to authorities. Date/fh7/~ y - . , CERT/F/CA TE OF SE.:RVICE AND NOW, this d.i.-1ay of October, 2004, the undersigned does hereby certify that she did this date serve a copy of the foregoing document 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: Paul F. D'Emilio, Esquire Puleo & D'Emilio, LLC 660 Sentry Parkway Blue Bell, PA 19422 Stephanie E. Chertok, Esquire 61 West Louther Street Carlisle, PA 17013 Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 David F. White, Esquire Marshall, Dennehey, Warnc:!r Coleman & Goggin 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 19462 JOHNSON, DUFFIE, STEWART & WEIDNER BY:~~cK~) ichelle H. Spangler :238039 22740-1794 ,~ . . ... (") ,....;) => ~ c c:::::l s;: .r:- '1:..11.::n :z: :r! mn. 0 rn :!.l Z'S; ..c :sFTi ''"''7-!' V>l' I ,:S ~~ :,'~! 06 ~\_.. ~~ ):io "j -0 --:ij Z(-' :x 0(') --0 5rn )>c: ~ ~ .~ 0 55 -< PULEO & D'EMILlO, LLC PAUL F. D'EMILlO, ESQUIRE ATTORNEY I.D.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT ID: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717 -249-1177 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI HUSBAND AND WIFE : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA VS. SHEETZ, INC. AND OPW ENGINEERED SYSTEMS AND OPW FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM NO. 04-3001 CIVIL JURY TRIAL DEMANDED : CIVIL ACTION REPLY TO NEW MATTER OF DEFENDANTS OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP TO PLAINTIFF'S AMENDED COMPLAINT The Plaintiffs, Vickie D. Borgolini and Hiram Borgolini, husband and wife, by their attorney Paul F. D'Emilio, Esquire, reply to the New Matter of the Defendants OPW Engineered Systems OPW Fueling Components and Richards Industries Valve Group in the above-captioned matter and set forth as follows: 34. Plaintiff incorporates by reference all the allegations contained in paragraphs 1-33 of the Complaint as fully as though the same were herein set forth at length. 35-39. Denied. The allegations are conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 40. Denied. The allegation is a conclusion of fact to which no responsive pleading is is required by the Pennsylvania Rules of Civil Procedure and the pleading is in violation of the Rules of Civil Procedure in that the specific facts upon which the defense is based are not pleaded with particularity. 41. Denied. The allegations is a conclusion of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 42. Denied. The allegation is a conclusion of fact to which no responsive pleading is is required by the Pennsylvania Rules of Civil Procedure and the pleading is in violation of the Rules of Civil Procedure in that the specific facts upon which the defense is based are not pleaded with particularity. 43-46. Denied. The allegations are conclusions of law to which no responsive pleadings is required by the Pennsylvania Rules of Civil Procedure. NEW MATTER CROSSCLAIM AGAINST CO-DEFENDANTS SHEETZ. INC. AND KEYSTONE PETROLEUM 1. Denied. The allegation is not directed to the Plaintiff. WHEREFORE, Plaintiffs demand judgment against each Defendant jointly and severally on each Count, in an amount in excess of Twenty-Five Thousand and 00/100 Dollars ($25,000.00) together with interest, deiay damages and costs of suit. paUIF'~~P/ w:~~~~ Co-counsel for the Plaintiffs Co-Counsel for the Plaintiffs Puleo & D'Emilio, LLC Attorney 10 #52651 Attorney 10 #16654 61 W. Louther Strreet 660 Sentry Parkway, Suite 210 Carlisle, PA 17013 Blue Bell, Pa 19422 (717) 249-1177 (610) 941-3600 PULEO & O'EMILlO, LLC PAUL F. O'EMILlO, ESQUIRE ATTORNEY 1.0.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT 10: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717 -249-1177 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI HUSBAND AND WIFE : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA VS. SHEETZ, INC. AND OPW ENGINEERED SYSTEMS AND OPW FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM NO. 04-3001 CIVIL : JURY TRIAL DEMANDED : CIVIL ACTION VERIFICATION Vickie D. Borgolini and Hiram Borgolini, Plaintiffs in the above-captioned matter verify that the facts contained in the foregoing Reply to New Matter of Defendants OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. CS. Section 4904 relating to unsworn falsification to authorities. DATE: /1 /~/oi /JtL,;5) bx~~ i~tD. Borgolinr .J Plaintiff DATE: /1/ ~/py ~I '~ 1Uu~ - Hiram Borgolini Plaintiff PULEO & D'EMILlO, LLC PAUL F. D'EMILlO, ESQUIRE ATTORNEY 1.0.# 16654 660 SENTRY PARKWAY, SUITE 210 BLUE BELL PA 19422 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT 10: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717 -249-1177 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI HUSBAND AND WIFE : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA VS. SHEETZ, INC. AND OPW ENGINEERED SYSTEMS AND OPW FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM NO. 04-3001 CIVIL JURY TRIAL DEMANDED CIVIL ACTION CERTIFICATION OF SERVICE I, PAUL F. D'EMILlO, ESQUIRE, hereby certify that a true and correct copy of Plaintiff's Reply to New Matter of Defendants OPW Engineered Systems, OPW Fueling Components And Richards Industries Valve Group to Plaintiff's Amended Complaint in the above-entitled matter has been served upon the following persons on the to day of ~ ' 2004 by first-class U.S. Mail, postage prepaid: C. Roy Weidner, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street PO Box 109 Lemoyne, Pa 17043-0109 Sheetz, Inc. 6558 Carlisle Pike Mechanicsburg, PA 17055 David F. White, Esquire Adam M.Sorce, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 19426-1056 (lb~fBr.~i. --- Attorney for Plaintiff "."."; I:,'" _I.:, je> ~.-) ", ~:~'4 -< (,) c...) ,"",) '-:'.~.., C">~) ....r;- (') ';1'1 ---, ;r~ ,;'J -,In c.;:; J ~.i>-: I~ ;.,: ~ :r; >>. :'~: ;::11 cS ...\r.... C"l - -f THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Defendant Sheetz, Inc. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3001 VICKIE D. BORGOLlNI and HIRAM BORGOLlNI v. CIVIL ACTION - LAW SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM JURY TRIAL DEMANDED Defendants NOTICE TO PLEAD TO: All Parties and Counsel: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. DATE: I :;./v (0 t{ Respectfully submitted, THOMA~ THOMAS & HAFER, LLP By:K-C< yr1'-/}~ Kevin C. McNamara, Esquire I.D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant Sheetz, Inc. THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Defendant Sheetz, Inc. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3001 VICKIE D. BORGOLlNI and HIRAM BORGOLlNI v. CIVIL ACTION - LAW SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM JURY TRIAL DEMANDED Defendants DEFENDANT SHEETZ, INC.'S ANSWER WITH NEW MATTER TO PLAINTIFFS' COMPLAINT AND NOW, comes Defendant Sheetz, Inc., by its attorneys, Thomas, Thomas & Hafer, LLP and answers Plaintiffs' Complaint as follows: 1. It is admitted that the Plaintiffs are who they say they are. 2. Admitted in part and denied in part. Sheetz operates a convenience store that has gas pumps at the alleged location. Sheetz does not own the property. 3-6. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in these paragraphs and proof thereof is demanded. 7. Admitted in part with qualification and denied in part. It is admitted that Keystone has, from time to time, serviced the gasoline pumps at store #195 on the Carlisle Pike. Answering Defendant does not believe that Keystone made any sales or performed any service or repairs at store #195 that are relevant to this litigation. As to the balance of the allegations, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and proof thereof is demanded. 8. Admitted in part and denied in part. It is admitted that from time to time, Sheetz acts through its agents, workmen, servants and employees. It is denied that any Sheetz employee did anything that would subject the company to liability in this instance. 9. Admitted in part and denied in part. It is admitted that Mrs. Borgolini was on the premises on the date alleged. As to the balance of the allegations, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and proof thereof is demanded. 10. Denied pursuant to Pa.R.C.P. 1029(e). 11. Admitted in part and denied in part. It is admitted that the Plaintiff got gasoline on her. It is denied that the pump malfunctioned. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the balance of the allegations contained in this paragraph and proof thereof is demanded. 12. Denied pursuant to Pa.R.C.P. 1029(e). 13. Denied. It is denied that Sheetz was negligent.. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the 326877 .1 2 truth of the balance of the allegations contained in this paragraph and proof thereof is demanded. 14-15. Denied. After reasonable investigation, Answering Defendant is are without knowledge or information sufficient to form a belief as to the truth of the averments contained in these paragraphs and proof thereof is demanded. COUNT I - Nealiaence 16. Answering Defendant hereby incorporates its answers to Paragraphs 1 through 15 as if fully set forth herein. 17(a)-(n). Denied pursuant to Pa.R.C.P. 1029(e). 18. Denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant Sheetz, Inc. respectfully requests that Count I of Plaintiffs' Complaint be dismissed without cost to it. COUNT II - Strict Liabilitv 19. Answering Defendant hereby incorporates its answers to Paragraphs 1 through 18 as if fully set forth herein. 21-23. Denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant Sheetz, Inc. respectfully requests that Count 1/ of Plaintiffs' Complaint be dismissed without cost to it. COUNT III - Breach of Warran~ 24. Answering Defendant hereby incorporates its answers to Paragraphs 1 through 23 as if fully set forth herein. 25-31. Denied pursuant to Pa.R.C.P. 1029(e). 326877.1 3 WHEREFORE, Defendant Sheetz, Inc. respectfully mquests that Count III of Plaintiffs' Complaint be dismissed without cost to it. COUNT IV - Hiram Boraolini v. All Defendants 32. Answering Defendant hereby incorporates its answers to Paragraphs 1 through 31 as if fully set forth herein. 33. Denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant Sheetz, Inc. respectfully requests that Count IV of Plaintiffs' Complaint be dismissed without cost to it. NEW MATTER 34. The incident described in Plaintiffs' Complaint was due solely or in part to the negligence and carelessness of Vickie Borgolini. 35. The Plaintiffs' claims are barred or reduced by Mrs. Borgolini's misuse of the gas pump. 36. On information and belief, Mrs. Borgolini did or may have assumed the risk of her injuries. 37. Plaintiffs' Amended Complaint fails to set forth a cognizable claim under Pennsylvania law for strict liability in that there was no "sale" of an allegedly defective product for purposes of Pennsylvania law. WHEREFORE, Defendant Sheetz, Inc. respectfully requests that Plaintiffs' Complaint be dismissed without cost to it. NEW MATTER PURSUANT TO PA.R.C.P. 2252(d) 38. Without admitting the truth thereof, the allegations directed to all Defendants other than Sheetz, Inc. are incorporated herein as if set forth at length. 326877 .1 4 39. If the allegations in Plaintiffs' Complaint are proven to be true and that Plaintiff was injured by some cause other than her own fault, then the Defendants other than Sheetz, Inc. are solely liable for all injuries and damages or, in the alternative, OPW Engineered Systems, OPW Fueling Components, Richards Industries Valve Group and Keystone Petroleum are liable over to Sheetz, Inc., or are liable to Sheetz, Inc. for contribution and/or indemnification. WHEREFORE, Sheetz, Inc. demands judgment in its favor. Respectfully submitted, DATE: 1;rllP(ol( THOMAS, THOMAS & HAFER, LLP / ) / ~ C '"--1/1/1 co /l By: f(._ YY"F ,~; Kevin C. McNamara, Esquire I.D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (7fi7) 237-7132 Attorneys for Defendant Sheetz, Inc. 326877. 1 5 VERIFICATION I, Kevin C. McNamara, Esquire, state that I am the attorney for the party filing the foregoing document; that I make this Affidavit as an attorney because I have sufficient knowledge or information and belief, based upon my investigation of the matters averred or denied in the foregoing document; that time is of the essence in the filing of this document; and that this statement is made subject to the penalties of 18 Pa.C.S.A. 9 4~104 relating to unsworn falsification to authorities. THOMAS, THOMAS, & HAFER, LLP ~ L'-rn~/}~ Kevin C. McNamara, Esquire DATE: 1J.-/CP(Ol( 38603-1 . CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placinl~ same in the United States mail, /. 'f-Ir ^ postage prepaid, on the ~day of I ~( 'l-(M. ~. V , 2004: Paul F. D'Emilio, Esquire PULEO & D'EMILlO, LLC 660 Sentry Parkway, Suite 210 Blue Bell, P A 19422 Stephanie E. Chertok, EsquirE~ 61 West Louther Street Carlisle, PA 17013-2936 C. Roy Weidner, Esuire Jefferson J. Shipman, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 David F. White, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 19426-1056 Richards Industries Valve Group 129 Manufacturers Road Rockwood, TN 37854 THO~AJ THOMAS & HAFER, LLP By: ~t-vvl71~ Kevin C. McNamara, Esquire 326877 .1 6 C' C ,....:> c:.:.:.) (.~.:::' .J;.:" o r~' C) \ o~ r'O c(' ~ -Cl ~ :;c'~~ ...{,. o ......~ '\ :::j ._ _,F 1(\"'\ t- r. \ ~... .\ ,\. ':::'::\ 't' ',.) " 'o" ?~\ -"'- -,.. c....' .r:- e:::> () c ....., t~'.') c:-> J" e::? .. ~ ", C) C) -"n ,.4 ~-\- -t t /\ "-l . c:: Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. 1.0. No. 19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 t_,"1 Attorneys for Keystone Petroleum :.;~ ('-.) -.\ Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VICKIE D. BORGOLlNI and HIRAM BORGOLlNI, v. NO. 2004-3001 CIVIL ACTION - LAW SHEETZ, INC., OPN ENGINEERED SYSTEMS, RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM, JURY TRIAL DEMANDED Defendants DEFENDANT KEYSTONE PETROLEUM'S ANSWER TO COMPLAINT AND NO~ this ~cff day of December, 2004, comes Defendant Keystone Petroleum Equipment, through its undersigned attorneys, and answers Plaintiffs' complaint as follows: 1. Denied. After a reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. 2. Admitted. 3-6. Denied. After a reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments. 7. Admitted in part. Denied in part. It is admitted that Defendant is a corporation. It is denied that its name is Keystone Petroleum. On the contrary, its name is Keystone Petroleum Equipment, LTD. It is specifically denied that Keystone sold and/or serviced the gas pump and pump nozzle as averred. 8. Denied. This averment is deemed denied as a conclusion of law to which no responsive pleading is required. 9-11. Denied. After a reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments. 12. Denied. 13. Denied. Any causal negligence on the part of Defendant is specifically denied. The remainder of this averment is denied in that Defendant is without knowledge or information sufficient to form a belief as to the truth thereof. 14-15. Denied. After a reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments. Count I - Negligence 16. Admitted in Part. Denied in part. Paragraphs 1 through 15 hereof are incorporated by reference herein. 17. Denied. These averments are specifically denied. On the contrary Defendant at all times acted reasonably under the circumstances. 18. Denied. Count 11- Strict Liability 19. Admitted in Part. Denied in part. Paragraphs 1 through 18 hereof are incorporated by reference herein. 20-23. Denied. These averments are denied generally and are denied specifically on the basis that Defendant did not sell or service the involved equipment or sell any defective, unfit or unmerchantable product which caused injuries or damages to Plaintiff. Count 11I- Breach of Warranty 24. Admitted in Part. Denied in part. Paragraphs 1 through 23 hereof are incorporated by reference herein. 25-31. Denied. Paragraphs 20 through 23 are incorporated by reference herein. Count IV - Hiram Borgolini v. All Defendants 32. Admitted in Part. Denied in part. Paragraphs 1 through 31 hereof are incorporated by reference herein. 33. Denied. Paragraphs 15 through 31 are incorporated by reference herein. WHEREFORE, Defendant Keystone demands that Plaintiffs' complaint against it be dismissed. CROSSCLAIM PURSUANT TO PA. R.C.P. NO. 2252(d) Keystone Petroleum Equipment v. All Co-Defendants 34. In the event that Plaintiffs were injured as complained of in their complaint, which is denied, then Plaintiffs injuries were the result of acts and omissions of Co- Defendants as set forth in the averments of Plaintiffs' complaint against said Co- Defendants, which are incorporated for reference herein only, but neither admitted nor denied, except as set forth above. WHEREFORE, Defendant Keystone demands that Co-Defendants be found solely liable to Plaintiffs; that they be found jointly and severally liable; or that they be found liable over for contribution and indemnification. JOHNSON, DUFFIE, STEWART & WEIDNER :240101 22740-1794 ~~~ By: ~ . Roy Weidner, Jr. VERIFICA TION The undersigned says that the facts set forth in the foregoing answer are true and correct. This verification is made subject to the penalties of 18 Pa. C.S.A. ~ 4904, relating to unsworn falsifications to authorities. KEY~LEUM EQUIPMENT, LTD. /,/~ By:-- ~ ~ Christo er Weikert Da~~;;' ,~ . I ... CERTIF/CA TE OF SERVICE AND NOW, this 7 t.J- day of December, 2004, the undersigned does hereby certify that she did this date serve a copy of the foregoing document 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: Paul F. D'Emilio, Esquire Puleo & D'Emilio, LLC 660 Sentry Parkway Blue Bell, PA 19422 Counsel for Plaintiff Stephanie E. Chertok, Esquire 61 West Louther Street Carlisle, PA 17013 Co-Counsel for Plaintiff Kevin C. McNamara, Esquire Thomas Thomas & Hafer 305 N. Front Street POBox 999 Harrisburg, PA 17108-0999 Counsel for Sheetz, Inc. David F. White, Esquire Adam M. Sorce, Esquire Marshall, Dennehey, Warner 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 19462 Counsel for OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group JOHNSON, DUFFIE, STE By: CJJ'--'-' Elizabeth L. .. . 'i' ~~~ ~~v~ ~ ~ ~~ \:) . ~*.~~~'{,,, ~ ~,~~~;; ~~c;J:J ~~ ~~~~ c.,'\~ PULEO & D'EMILIO, LLC PAUL F.D'EMILIO, ESQUIRE ATTORNEY I.D.16654 660 SENTRY P ARKW A Y BLUE BELL, P A 19422 STEPHANIE .K CHERTOK, ESQUIRE P A SUPREME: COURT ID: 52651 61 WEST LOUTHER STREET CARLISLE, P A 17013 717-249-1177 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLINI AND HIRAM BORGOILNI :: IN THE COURT OF COMMON HUSBAND AND WIFE :: PLEAS OF CUMBERLAND VS.: COUNTY PENNSYLVANIA SHEETZ,INC. AND OPW ENGINEERED SYSTEMS AND OPW FEULING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM : NO. 04-3001 CIVIL : JURY TRIAL DEMAND : CIVIL ACTION REPLY TO NEW MATTER OF DEFENDANT SHEETZ'S, INC. The Plaintiffs, Vickie D. Borgolini and Hiram Borgolini, husband and wife, by their attorneys Paul F. D'Emilio, Esquire and Stephanie E. Chertok, Esquire, reply to the New Matter of the Defendant Sheetz, Inc. in the above-captioned matter and set forth as follows: 34-39 Denied. (j)"J(~ Paul F. D'Emilio, Esquire Co-Counsel for the Plaintiffs Puleo & D'Emilio, LLC Attorney ID #16654 660 Sentry Parkway, Suite 210 Blue Bell, P A 19422 (610) 941-3600 WHEREFORE, Plaintiffs demand judgment against each Defendant jointly and severally on each Count, in an amount in excess of Twenty-Five Thousand and 00/100 Dollars (25,000.00) together with interest, delayed damages and costs of suit. f L~~ Co-Counsel for the Plaintiffs Attoffifey ID #52651 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 r-) "r',. r~:" .1 r'.~j {""' "," - , c"' PULEO & D'EMILIO, LLC PAUL F .D'EMILIO, ESQUIRE ATTORNEY I.D. 16654 660 SENTRY PARKWAY BLUE BELL, P A 19422 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT ID: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717-249-1177 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLINI AND HIRAM BORGOILNI HUSBAND AND WIFE VS. SHEETZ, INC. AND OPW ENGINEERED SYSTEMS AND OPW FEULING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA : NO. 04-3001 CIVIL : JURY TRIAL DEMAND : CIVIL ACTION CERTIFICATION OF SERVlCE I, Stephanie E. Chertok, Esquire, hereby certify that a true and correct copy of Plaintiff's Reply to New Matter of Defendants Sheetz, Inc. to Plaintiff's Amended Complaint in the above-entitled matter has been served upon the following persons on the~ of December, 2004 by first-class U.S. Mail, postage prepaid: C. Roy Weidner, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 David F. Whitt:, Esquire Marshall, Demlehey, Warner, Coleman & Goggin 620 West Germantown Pike, Suite 350 Plymouth Meeting, P A 19426-1056 Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 t'..~. ... c--=-""' )~. ~: "'H~." .-('.. c/\ ~. , . --"I .... > '",'" , ' \'.; , \' :; . . " THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, P A 17108-0999 717/237-7132 Attorneys for Defendant Sheetz, Inc. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3001 VICKIE D. BORGOLlNI and HIRAM BORGOLlNI v. CIVIL ACTION - LAW SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM JURY TRIAL DEMANDED Defendants PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the attached Verification of Mary Anslinger, representative of Sheetz, Inc., Defendant in this matter, for my Attorney's Verification attached to Defendant Sheetz's Answer with New Matter to Plaintiffs' Complaint, previously filed in this matter. Respectfully submitted, DATE: /d-/~I lor THOMAS, THOMAS & HAFER, LLP By: ~ C tvll--l ~ Kevin C. McNamara, Esquire I.D.#72668 30!5 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant Sheetz, Inc. 331396-2 VERIFICATION I, Ma.r) A("\~ )'^jif , state that I am an authorized representative of SHEETZ, INC., that I make this Verification on behalf of Defendant SHEET;Z, INC., and that I am familiar with the facts set forth in the foregoing document. I have read the foregoing document and hereby affirm that it is true and correct to the best of my personal knowledge, information and belief. This Verification is made pursuant to 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. SHEETZ, INC. By: rn~ ~r DATE: I ~ )<610'f 84079-1 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United States mail, '51- postage prepaid, on the ~ I ~y of Dee.e-~ ~ ,2004: Paul F. D'Emilio, Esquire PULEO & D'EMILlO, LLC 660 Sentry Parkway, Suite 210 Blue Bell, PA 19422 Stephanie E. Chertok, EsquirEl 61 West Louther Street Carlisle, PA 17013-2936 C. Roy Weidner, Esuire Jefferson J. Shipman, EsquirEl JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 David F. White, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 19426-1056 THOMAS, THOMAS & HAFER, LLP By: ic.. ~ V\71~ Kevin C. McNamara, Esquire 331396-2 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) x for JURY trial at the next term of civil court. for trial without a jury. . ..______.._...__________.......__..________..____..___...__________________..___.____________________u._____________..____________________________________..____0._ CAPTION OF CASE (entire caption must be stated in full) VICKIE D. BORGOLINI AND HIRAM BORGOLINI, (check one) Assumpsit (Xl Trespass Trespass (Motor Vehicle) (Plaintiff) (other) vs. SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING CCMPONENTS, RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM , The trial list will be called on .'11n... 21. ?OO~ and Trials commence on July 18, 2005 (Defendant) Pretrials will be held on June 29. 2005 (Briefs are due 5 days before pretrials.) vs. (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 04-3001 Civil .19__ Indicate the attorney who will try case for the party who files this praecipe: ~Roy Weidner, Jr. Indicate trial counsel for other parties if known: Paul F. D'Emilio, Esquire, Stephanie E. Chertok, Esquire, Kevin C. McNamara, Esquire, David F. White, Esqu_ire, Ad~M. Sorce, Esquire This case is ready for trial. Signed: Date: tJ1Ier;/IL_ Print Na Attorney for: ~eyston"_Petroleurn. Inc. 2 ....., ~ """ = ~ c.n qa~ > ...... -0 ffi:!3 ...--- ,j' :;:0 r >:.: c. N -08 (I; :0 :;:J -< C1' (J 1- s::: (. _.-t(..,) -V -r I' ::':J 4_..' :x C; f;F; "c'" <:? t':;;rn ~ ~i..~ -. U1 :TJ W -< ----- - -- PAUL F. D'EMILlO, ESQUIRE ATTORNEY I.D.# 16654 905 WEST SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI HUSBAND AND WIFE VS. SHEETZ, INC. AND OPW ENGINEERED SYSTEMS AND OPW FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM ATTORNEY FOR PLAINTIFFS : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA : NO. 04-3001 JURY TRIAL DEMANDED CIVIL ACTION OBJECTIONS TO THE PRAECIPE FOR LISTING CASE FOR TRIAL FILED BY THE DEFENDANT KEYSTONE PETROLEUM Plaintiffs, by their attorney, Paul F. D'Emilio, Esquire, objects to the filing of a Praecipe for listing case for trial in the above entitled matter and sets forth as follows: 1. This case is a personal injury case filed on July 18,2004. An amended Complaint was filed on August 11, 2005. 2. The filing of a Praecipe for the Trial list is premature because: a. The first sets of depositions were taken on March 10,2005; b. Copies of the depositions were received by Plaintiffs counsel on April 28, 2005. The depositions had an incorrect date and had to be returned to be corrected by the Court reporter; c. The witnesses have not yet had the opportunity to read, review and make corrections to their depositions; d. On April 27, 2005 another Defendant requested additional medical records. e. Plaintiffs' counsel intends to take additional discovery in the form of depositions and interrogatories. 3. Clearly Discovery is incomplete and the case is not ready for trial. WHEREFORE, Plaintiff respectfully requests that your Honorable Court strike the Praecipe for Listing Case for Trial filed by the Defendant Keystone Petroleum in the above captioned matter. Respectfully Submitted. af~& Attorney for Plaintiff PAUL F. D'EMILlO, ESQUIRE ATTORNEY I.D.# 16654 905 WEST SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 VICKIE D. BORGOLlNI AND HIRAM BORGOLlNI HUSBAND AND WIFE VS. SHEETZ, INC. AND OPW ENGINEERED SYSTEMS AND OPW FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM ATTORNEY FOR PLAINTIFFS : IN THE COURT OF COMMON ; PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA NO. 04-3001 CIVIL JURY TRIAL DEMANDED : CIVIL ACTION CERTIFICATION OF SERVICE I, PAUL F. D'EMILlO, ESQUIRE, hereby certify that a true and correct copy of Plaintiff's Objections to the Filing of a Praecipe for Listing Case for Trial in the above- entitled matter has been served upon the following persons on the b day of"'rUd..t _ May, 2005 by first-class U.S. Mail, postage prepaid: .. - , David F. White, Esquire Adam M. Sorce, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 19426-1056 Kevin C. McNamara, Esquire Laura A. Gargiulo, Esquire 305 N. Front Street PO Box 999 Harrisburg, PA 17108-0999 CRoy Weidner, Esquire Jefferson J. Shipman, Esquire 301 Market Street PO Box 109 Lemoyne, PA 17043-0109 aJ)];f~ Attorney for Plaintiff ", ,.:.~/' 0 ("_:"~-:'l {'-t, -n -'..>' :;! - l'i': . (" \...'.:' 1:) ::i.;;: 1'.' ~ U'; - 6 Vickie D. Borgolini and Hiram Borgolini IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. Sheetz, Inc., OPW Engineered Systems, OPW Fueling Components, Richards Industries Valve Group and Keystone Petroleum : NO. 04-3001 CIVIL TERM ORDER OF COURT AND NOW, June 21, 2005, by agreement of counsel, the above captioned case is continued from the July 18,2005 trial term. Counsel is directed to relist the case when ready. By the Court, ~ephanie E. Chertok, Esquire For the Plaintiff ~Roy Weidner, Jr., Esquire 7 /~I F. D'Emilio, Esquire .ACyvin C. McNamara, Esquire vOavid F. White, Esquire lA\dam M. Sorce, Esquire For the Defendant v6>urt Administrator(~) jhk ~ -- ~~: :E ~C) 'C' "'i' ,.~ 6\$:: "" ~iE ~ co t..n ;>- ~ :5 N ..:"". ~;~S "'" ~ = <.... Johnson. Duffie, Stewart & Weidner By: Wade D. Manley 1.0. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com Attorneys for Defendant Keystone Petroleum Equipment VICKIE D. BORGOLlNI and HIRAM BORGOLlNI, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-3001 CIVIL ACTION - LAW JURY TRIAL DEMANDED v. SHEETZ, INC., OPW ENGINEERED SYSTEMS, RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM, Defendants PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next: Argument Court -*********************************************************************~,************************** CAPTION OF CASE (entire caption must be stated in full) VICKIE D. BORGOllNI and HIRAM BORGOllNI, (Plaintiffs) vs. SHEETZ, INC., OPW ENGINEERED SYSTEMS, RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM, (Defendants) No. 2004-3001 Civil 1. State matter to be argued (i.e., Plaintiffs motion for new trial, Defendant's demurrer to complaint, etc.): Plaintiff's Motion for Partial Summary Judgment. 2. Identify counsel who will argue case: a) For Plaintiff: Address: Paul F. D'Emilio, Esquire 660 Sentry Parkway, Blue Bell, PA 19422 Co-Counsel for Plaintiff: Address: Stephanie E. Chertok, Esquire 61 West Louther Street, Carlisle, PA 17013 b) For Defendant: Address: C. Roy Weidner, Esquire 301 Market Street, L.emoyne, PA 17043 3. argument. I will notify all parties in writing within two days that this case has been listed for 4. Argument Court Date: August 24, 2005 Call of Argument list Date: Dated: 1 Jr-of.s iN"!' ~. ~~ / C. Roy W dner, b Wade D. anley Attorneys for Keystone Petroleum csj:254839 22740-1794 CERTIFICA TE OF SERVICE AND NOW, this ,.;./ sr- day of July, 2005, the undersigned does hereby certify that she did this date serve a copy of the foregoing document 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: Paul F. D'Emilio, Esquire Puleo & D'Emilio, LLC 660 Sentry Parkway Blue Bell, PA 19422 Counsel for Plaintiff Stephanie E. Chertok, Esquire 61 West Louther Street Carlisle, PA 17013 Co-Counsel for Plaintiff Kevin C. McNamara, Esquire Thomas Thomas & Hafer 305 N. Front Street POBox 999 Harrisburg, PA 17108-0999 Counsel for Sheetz, Inc. David F. White, Esquire Adam M. Sorce, Esquire Marshall, Dennehey, Warner 620 West Germantown Pike, Suite ~150 Plymouth Meeting, PA 19462 Counsel for OPW Engineered Systems, OPW Fueling Components. and Richards Industries Valve Group JOHNSON, DUFFIE STEWAfl{ & WEIDNER ~I ' I ~)'L-,~ Car en S. Jensen L,// By: ,-' co.::.. ......, c::.~::> ~ , C r-'- 1".) 1" ~ :1,~ o -n .-1 ~ Gi:n ~ '7 (-' "j ,:!)~a ,..,,1.-) ;,_';,fd S~ :D -< (.) U) Johnson. Duffie, Stewart & Weidner By: Wade D. Manley 1.0. No. 87244 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 wdm@jdsw.com Attorneys for Defendant Keystone Petroleum Equipment Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VICKIE D. BORGOLlNI and HIRAM BORGOLlNI, v. NO. 2004-3001 CIVIL ACTION - LAW SHEETZ, INC., OPW ENGINEERED SYSTEMS, RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM, ,JURY TRIAL DEMANDED Defendants DEFENDANT. KEYSTONE PETROLEUM'S RESPONSE TO THE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND NOW, comes the Defendant, Keystone Petroleum, by and through its attorneys, Johnson, Duffie, Stewart & Weidner, and files the foregoing response, by stating the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part; Denied in part. It is admitted that Plaintiffs mailed a letter dated July 10, 2002 to the Defendant Sheetz, Inc. requesting that Defendant Sheetz report the incident to their insurance company, and for Defendant Sheet,~ to preserve a videotape of the incident, if such videotape existed. It is specifically denied that counsel for the Plaintiffs wrote a letter to Defendant Keystone Petroleum advising Keystone Petroleum of a potential claim against Keystone Petroleum. Defendant Keystone Petroleum did receive a copy of the letter dated July 10, 2002 directed to the Defendant Sheetz requesting Defendant Sheetz to report the incident to its insurance carrier. The Defendant Keystone Petroleum is without information sufficient to confirm or deny Defendant Sheetz's receipt of the letter as alleged by the Plaintiffs in paragraph 5. Therefore, the allegation is denied and strict proof thereof is demanded. 6. Denied. The averments contained in para~lraph 6 are based on actions performed by a Defendant other than the Answering Defendant, Keystone Petroleum, and therefore the averments are denied as the Answering Defendant, Keystone Petroleum, does not have information sufficient to either confirm or deny the averml~nts contained in this paragraph. By way of further answer, Mary Anslinger testified at her deposition that after receiving notice of the incident, the initial report concluded that the pump was operating properly. 7. Denied. The averments contained in paragraph 7 are denied. The averments contained in paragraph 7 concern the actions of Co-Defendant Sheetz, therefore no answer on behalf of Defendant Keystone Petroleum is required. By way elf further answer, a pleading filed by Co-Defendant Sheetz entitled Answer with New Matter denil~s a malfunction of the gas pump or nozzle and contains New Matter arguing the Plaintiffs' possible misuse of the gas pump. 8. Admitted in part; Denied in part. It is admitted that on July 26, 2002, Co- Defendant Sheetz contracted with Defendant Keystone Petmleum to remove the damaged multiple product dispenser (MPD). It was also admitted that thE! MPD was above ground and is generally used to dispense regular, plus, and super grade gasoline. The remainder of the averments contained in this paragraph are specifically denied. 9. Denied. Mr.Hyle's testimony that "to the best I)f my knowledge, I put six new nozzles on, six brand new panels" solely concerned his belief that he took off the nozzles, not the hoses. (See Plaintiffs' Exhibit F, pg. 8-9). 10. Denied. Plaintiffs have failed to cite any evidence indicating that the nozzles and hoses on pump 5 were replaced a couple days after July 26, :W02. By way of further answer, Mr. Hyle testified that it is his belief that nozzles were replaced a few days after July 24, 2002. Additionally, it is specifically denied that the Defendant Keystone Petroleum admitted to having knowledge of, or actually knew of, a potential claim against it. 11. Denied. It is specifically denied that Defendant Keystone Petroleum has deprived the Plaintiffs of the opportunity to have a piece of the alleged equipment examined by an expert of the Plaintiffs' choice by dispensing of it impwperly. It is admitted that the Defendant Keystone Petroleum did not inspect any part of the alleged equipment for the purpose of this litigation. The remainder of the averments contained in paragraph 11 are directed to the actions of Co-Defendant, Sheetz, and therefore the Defendant Keystone Petroleum has insufficient information in order to confirm or deny the averments contained therein. Therefore those averments are specifically denied. 12. Denied. The averments contained in paragraph 12 are conclusions of law to which no response is deemed to be required. However, if further answer is required, it is specifically denied that the Defendant, Keystone Petroleum, is solely responsible, or responsible in any manner for the inavailability of evidence, that the Plaintiffs' case is prejudiced or that the Plaintiff is entitled to a sanction for spoilation of evidence by w~IY of the granting of their partial motion for summary judgment. 13. Admitted. 14. Denied. Counsel for the Defendant, Keystone Petroleum, has filed a Praecipe listing this matter for trial. Counsel for Defendant, Keystone Petroleum, agreed to a continuance for listing the matter for trial only after Plaintiffs' counsel finally agreed to schedule depositions of liability witnesses the Plaintiffs intended to call. By way of further answer, it is specifically denied that the Plaintiffs' discovery efforts have been delayed due to any action by the Defendant, Keystone Petroleum. 15. Denied. Defendant, Keystone Petroleum, does not have information sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 15, therefore the averments contained in this paragraph are specifically denied. By way of further answer, it is specifically denied that any action by the Defendant, Keystone Petroleum, has caused any delay to the Plaintiffs' efforts to conclude discovery and proc;eed to trial. It is specifically asserted by the Defendant, Keystone Petroleum, that the Plaintiffs' delay in scheduling depositions for liability witnesses alone has caused delay in the conclusion of discovery and proceeding to trial. 16. Denied. As previously stated, Plaintiffs' actions alone, in failing to timely notice depositions of liability witnesses, has caused a delay in the disc1Jvery process, and ultimately a delay in this matter proceeding to trial. It is believed, and therefore averred, that the Plaintiffs' instant Motion for Partial Summary Judgment is solely an attempt to further delay this matter proceeding to trial, and therefore should be denied. WHEREFORE, the Defendant, Keystone Petroleum, requests that this Honorable Court deny the Plaintiffs' Motion for Partial Summary Judgment on the issue of liability. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: N* D. Wade D. Man csj :254836 22740-1794 CERTIFICA TE OF SERVICE AND NOW, this ,.J./rr-day of July, 2005, the undersigned does hereby certify that she did this date serve a copy of the foregoing document 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: Paul F. D'Emilio, Esquire Puleo & D'Emilio, LLC 660 Sentry Parkway Blue Bell, PA 19422 Counsel for Plaintiff Stephanie E. Chertok, Esquire 61 West Louther Street Carlisle, PA 17013 Co-Counsel for Plaintiff Kevin C. McNamara, Esquire Thomas Thomas & Hafer 305 N. Front Street POBox 999 Harrisburg, PA 17108-0999 Counsel for Sheetz, Inc. David F. White, Esquire Adam M. Sorce, Esquire Marshall, Dennehey, Warner 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 19462 Counsel for OPW Engineered Systems, OPW FUElling Components and Richards Industries Valve Group JOHNSON, DUFFIE, STE T & WEIDNER .;1 (7 ,-' I I By: UA./LWAI ,/ , . C<i{leen S./ Jlensen / C) c.:. ,-:> C';:.:l c:::~ ,~~ ~~ , I....,., N o .." :::J i_-n rn-- [3 -~ <;} ~0 -r THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Defendant Sheetz. Inc. VICKIE D. BORGOLlNI and HIRAM BORGOLlNI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 04-3001 v. CIVIL ACTION - LAW SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM JURY TRIAL DEMANDED Defendants DEFENDANT SHEETZ, INC.'S RESPONSE TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT 1. Admitted in part and denied in part. It is admitb3d that the Plaintiffs filed suit as a result of an incident that occurred on June 27, 2002, at a Sheetz convenience store located on the Carlisle Pike in Mechanicsburg. It is denied that Sheetz owns thl3 store. 2. Admitted with qualification. The Plaintiffs initiated separate actions against various Defendants in regard to the June 27, 2002 incident. It is admitted that the cases have been consolidated. 3. It is admitted that the Plaintiffs have pleaded alternative theories based upon allegations that Mrs. Borgolini was injured when she attempted to pump gas at a Sheetz convenience store on June 27, 2002. 4. Admitted that this is alleged in the Plaintiff's pleadings. 5. Admitted in part and denied in part. It is admitted that a letter was received from a paralegal at the firm of Rovner, Allen, Rovner, Zimmerman & Nash was received by Sheetz informing the company that Ms. Borgolini had sustained injuries as a result of Sheetz's "negligence." The letter is not dated July 10, 2002. Additionalily, the letter made no request that the fuel dispenser, nozzles or hoses be preserved. Moreover, the notice sent by Mr. Pridachin indicated an improperly functioning Pump #6. Mrs. Borgolini has since indicated that the incident actually happened at Pump #5. 6. Admitted in part and denied in part. While it is admitted that Mary Anslinger was notified of the occurrence, it is denied that she failed to investigate or make any inquiry into the possible cause of the incident. Instead, the matter was turned over to a claims administration service who investigated the incident. As a result of the investigation, it was determined that the pump did not malfunction. There had been no prior or subsequl3nt problems with the pump and it was concluded that the incident occurred as a result of customer error. 7. Admitted. 8. Admitted with qualification. It is admitted that the dispenser was removed by Keystone Petroleum on or about July 26, 2002, and that to the best of Sheetz's knowledge, Keystone Petroleum discarded the dispenser, the hoses and the nozzles. 9. Denied. Keystone replaced the existing dispenser with a used dispenser that was delivered with old nozzles that were all black. Sheetz dispensers use black, blue and red nozzles and in the process of making the used dispenser a Sheetz dispenser, Jason Hile replaced all of the old black nozzles with new nozzles. (Hile Deposition pp. 8-9) 368217-1 10. Admitted in part and denied in part. Within a few days of July 24,2002, Jason Hile of Sheetz replaced the nozzles on the used dispenser that was delivered by Keystone. The nozzles that were discarded at that time were black and were not the type used by Sheetz. This replacement was part of a repair to the dispenser that had been struck by a vehicle. It is denied that at this point, Sheetz had been placed on notice of a pot,ential claim involving the nozzles. Instead, the notice letter indicated an improperly functioning gas Pump #f3. The notice letter made no reference to nozzles nor did it make any reference to Pump #5 where the incident apparently occurred. 11. Denied. It is denied that anything Sheetz did deprived the Plaintiffs of an opportunity to do anything. The dispenser and the nozzles performed perfectly well both before and after this incident. It is further denied that the nozzle was not inspected by Sheetz to discern the nature or cause of the alleged malfunction. At least one Sheetz employee inspected the dispenser and the nozzle immediately after Mrs. Borgolini notified the stor,e that she had injured herself and the nozzle and dispenser in general were found to be in proper working condition. 12. Denied. No sanctions are in order under the circumstances. 13. Admitted. 14. Denied. Counsel for Sheetz has not filed a Praecipe listing the matter for trial. It is further denied that Sheetz or the undersigned have done anything to delay the Plaintiffs' discovery efforts which can best be described as "deliberate." The allegation of delay caused by the Defendant is simply false. 15. It is denied that the letter from Attomey Sorce is of any relevance. 16. Denied. Summary judgment is inappropriate and improper under these circumstances. 368217-1 WHEREFORE, Defendant Sheetz, Inc. respectfully mquests that Plaintiffs' Motion for Partial Summary Judgment be denied and dismissed. Respectfully submitted, DATE: 7 P 7/t5l..,5 THOMAS, THOMAS & HAFER, LLP I . II. C <-:J/VI,c.../1 ; By.J).,,_ y r r , ~ Kevin C. McNamara, Esquire 1.0.#72668 305, North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (71"7) 237-7132 Attorneys for Defendant Sheetz, Inc. 368217-1 VERIFICATION I, Kevin C. McNamara, Esquire, state that I am the attorney for the party filing the foregoing document; that I make this Affidavit as an attorney because 1 have sufficient knowledge or information and belief, based upon my investigation of the matters averred or denied in the foregoing document; that time is of the essence in the filin~l of this document; and that this statement is made subject to the penalties of 18 Pa.C.S.A. ~ 4B04 relating to unsworn falsification to authorities. THOMAS, THOMAS, & HAFER, LLP (.LC-WlY]~ Kevin C. McNamara, Esquire DATE: 7/~7/0..5 38603-1 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placin~1 same in the United States mail, postage prepaid, on the":>7~ of J....-kr ,2005: 368217.1 Paul F. D'Emilio, Esquire PULEO & D'EMILlO, LLC 660 Sentry Parkway, Suite 210 Blue Bell, PA 19422 Stephanie E. Chertok, Esquin3 61 West Louther Street Carlisle, PA 17013-2936 C. Roy Weidner, Esuire Jefferson J. Shipman, Esquin3 JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 David F. White, Esquire MARSHALL, DENNEHEY, WARNER. COLEMAN & GOGGIN 620 West Germantown Pike, Suite 350 Plymouth Meeting, PA 19426-1056 THOMAS, THOMAS & HAFER, LLP BY:~lcy')~ Kevin C. McNamara, Esquire r-' ':~-~\ C-, roO) ~-'~ 0 t;f\ .-:! ,\",) c:) ~ STEPHANIE E. CHERTOK, ESQUIRE ATTORNEY I.D. 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 (717) 249-8749 ATTORNEYS FOR PLAINTIFFS P AVL F. D'EMILIO, ESQUIRE ATTORNEY I.D. 16654 905 W. SPROUL ROAD SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 VICKIE D. BORGOLINI AND HIRAM BORGOILNI HUSBAND AND WIFE VS. : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA SHEETZ, INC. AND OPW ENGINEERED SYSTEMS AND OPW FUELING COMPONENTS AND RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM : NO. 04-3001 : JURY TRIAL DEMANDED : CIVIL ACTION CERTIFICATE OF SERVICE I, Stephanie E. Chertok, Esquire, hereby certifY that a true and correct copy of the Plaintiffs' Supplemental Memorandum in Response to Defendant Sheetz, lnc.'s, Answer to Plaintiffs' Motion for Partial Summary Judgment in the above-titled matter has been served upon the following persons on the 4th day of August, 2005, by first-class U.S. Mail, postage prepaid: C. Roy Weidner, Esquire Johnson, Duffie, Stewart & Weidner 30 I Market Street P.O. Box 109 Lemoyne, PA 17043-0109 David F. White, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 620 Germantown Pike, Suite 350 Plymouth Meeting, P A 18426-1056 Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 /~~~ Paul F. D'Emilio, Esquire AiFORNEYS FOR PLAINTIFFS .. ~~s. {""':.? cJ-\ ,~ "'" \ :;,- ......',:) "'< / .' ;,::- '-' - VICKIE D. BORGOLlNI AND, HIRAM BORGOLlNI, PLAINTIFFS : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM, DEFENDANTS : 04-3001 CIVIL TERM IN RE: MOTION OF PLAINTIFFS FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS SHEETZ. INC. AND KEYSTONE PETROLEUM BEFORE BAYLEY. J. AND GUIDO, J. ORDER OF COURT AND NOW, this --Z'Z0 day of November, 2005, the motion of plaintiffs for partial summary judgment, IS DENIED. Stephanie E. Chertok, Esquire Paul F. D'Emilio, Esquire For Plaintiffs ) Kevin C. McNamara, Esquire For Sheetz, Inc. 11- elJ - 0<:; e~ ~..;L ]Y5' L'_ C) l.r:~ .- ~:: C"'l - '!'- n:;: r:"oJ C.J c'} .) } 04-3001 CIVIL TERM Wade D. Manley, Esquire For Keystone Petroleum David F. White, Esquire Adam M. Sorce, Esquire For OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group :sal -2- VICKIE D. BORGOLlNI AND, HIRAM BORGOLlNI, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM, DEFENDANTS 04-3001 CIVIL TERM IN RE: MOTION OF PLAINTIFFS FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS SHEETZ. INC. AND KEYSTONE PETROLEUM BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., November 22, 2005:-- Plaintiffs, Vickie D. Borgolini and Hiram Borgolini, filed an amended complaint against defendants Sheetz, Inc., OPW Engineered Systems, OPW Fueling Components, Richards Industries Valve Group and Keystone Petroleum. Vickie Borgolini avers that on June 27, 2002, she stopped her vehicle at a gas station operated by Sheetz, Inc., in Cumberland County. She alleges that she "was in the process of fueling her vehicle when suddenly and without warning, the nozzle of the gas pump malfunctioned and the nozzle while still in her hand burst from the car with fuel spouting from it causing [her injury]." She alleges that, "At all times hereinafter mentioned Defendants knew, should have known and in the exercise of due care could have known that pump no. 5 was malfunctioning or defective." OPW Engineered 04-3001 CIVIL TERM Systems, OPW Fueling Components and Richards Industries Valve Group manufactured parts of pump NO.5. Keystone Petroleum "sold and/or served the gas pump and pump nozzle #5 at the Sheetz gas station." Plaintiffs plead counts against all defendants for negligence in, inter alia, failing to provide safe equipment with adequate warnings as to proper use; for strict liability based, inter alia, on a defective condition in the equipment without adequate warnings; and for breach of warranty based, inter alia, on equipment that was not "merchantable, fit for use, and suitable and fit for particular purpose." Plaintiffs filed a motion for partial summary judgment on liability against Sheetz and Keystone which was briefed and argued on August 24, 2005. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A court: . . . must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non- moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertre/ v. Patriot-News Co., 544 Pa. 93,101-102,674 A.2d 1038, 1042 (1996). The issue as stated by plaintiffs in their motion for summary judgment is, "Whether the failure of Defendants Sheetz and Keystone Petroleum to preserve the dispenser unit, hoses, and nozzle after receiving notice of the claim against them was -2- 04-3001 CIVIL TERM the result of negligence [which] severely prejudiced the Plaintiffs' case, and warrants a sanction of summary judgment on the issue of liability?" Their brief sets forth facts that they contend are in the record and support their motion: On July 10, 2002, Plaintiffs' counsel informed Defendants Sheetz and Keystone Petroleum that they were representing the Plaintiffs and put them on notice of a possible claim against them involving the aforementioned injuries to Plaintiff Vickie D. Borgolini. Approximately two weeks after receiving this notice, Defendant Keystone Petroleum replaced the dispenser unit at pump number five at store 195. Shortly thereafter, Defendant Sheetz replaced the nozzle and hoses on pump number five. In both instances, the evidence was discarded rather than being preserved for inspection by the Plaintiffs. An employee of Sheetz has testified that the nozzle was disposed of in the same manner as any other old equipment that has been replaced. No examination of the nozzle was made by either Defendant, the Plaintiffs, or a third party. In its brief, Sheetz, Inc., sets forth facts that it contends are in the record and show the following: According to the Plaintiff's deposition, the incident occurred as she was attempting to fuel her automobile at Pump #5. She activated the pump mechanism, inserted the nozzle in the tank and began to dispense gasoline. She was not using the automatic triggering mechanism on the pump, but instead, was depressing the trigger with her hand. She claims that in the process of doing so, the nozzle burst out of her gas tank and sprayed her in the face and upper torso. Approximately one month later, on July 24, 2002, the dispenser for Pump #5 was struck by a tractor trailer and the dispenser had to be replaced. (Hyle Deposition Exhibit 1) On July 26,2002, Keystone Petroleum replaced the dispenser with a used unit. (Weikert 17-18) Keystone representative, Christopher Weikert, was deposed May 10, 2005. Mr. Weikert was not personally involved in the work performed by Keystone on July 26, 2002, but said from looking at the invoice, he believed the existing hoses and nozzles were put on the replacement unit because they were not damaged. Sheetz employee, Jason Hyle, was also questioned about the replacement of the dispenser at Pump #5. In his deposition he explained that he was the one who physically replaced the nozzles on the used unit -3- 04-3001 CIVIL TERM that Keystone had installed. Mr. Hyle said that the nozzles on the used dispenser were all black in color and that Hyle replaced those nozzles with black, blue and red ones so that they would match the other dispensers at the convenience store. In response to a specific question from Plaintiffs' counsel in regard to whether Keystone put the existing hoses and nozzles on the replacement dispenser, Mr. Hyle's response was "I don't remember them doing that." Prior to the replacement of the dispenser on July 26, 2002, Pump #5 had been in continuous operation since the incident reported by Mrs. Borgolini. (Kristina Smith Affidavit paragraph 6) In the course of discovery, Sheetz produced maintenance records for one year after the incident to show that there had been no subsequent reports similar to those Mrs. Borgolini claimed. In the four weeks between Mrs. Borgolini's incident and when the dispenser was replaced, pump 5 was in continuous use without any similar report of problems. (Kristina Smith Affidavit paragraph 5) Moreover, immediately after the incident reported by Mrs. Borgolini, the pump was inspected by Sheetz employee, Kristina Smith, who found the nozzle and dispenser to be in proper working order. (Kristina Smith Affidavit paragraph 5) Based upon this evaluation and the contemporaneous report from Mrs. Borgolini that she was adjusting the positioning of the nozzle at the time of the incident ("The woman put the pump in her car and did not have it in right [went] to fix it and gas [went every] place. . . ."), Sheetz concluded that customer error was the cause of the incident and the pump was not taken from service. (Kristina Smith Affidavit paragraph 5; Sheetz incident Report) Approximately two weeks after this incident, Sheetz did receive a notice of claim letter from a paralegal indicating that Mrs. Borgolini had been injured by a malfunctioning Pump #6 (Second Exhibit attached to Plaintiffs' Motion for Partial Summary Judgment) the letter was misdated (2001 instead of 2002), identified the wrong pump (#6 instead of #5), made no request for preservation or inspection of the pump, dispenser or any component part and identified the nature of the claim as negligence and not strict products liability. Plaintiffs' counsel did not ask to actually see the dispenser or any component part until after litigation had been commenced in mid-2004. (Footnote omitted.) The letter dated July 10, 2001, sent by the paralegal to Sheetz, with a copy to Keystone, set forth: Be advised that our office represents Vickie Borgolini with regard -4- 04-3001 CIVIL TERM to injuries she sustained as a result of your negligence. On the above- mentioned date our client was fueling her car when the hose she was using sprayed her with gasoline. She was saturated with gasoline and suffered sever injuries to her eyes. The cause was an improperly functioning gas pump No.6. Also, it was brought to our attention that on 07/01/02 a repair was conducted on pump NO.6 by Keystone Petroleum Co. I ask that you report this accident to your insurance company as soon as possible so that I may deal directly with them. If you are uninsured, please advise this office immediately. We understand you have videotape of the incident and would ask that the tape be preserved. In a reply brief, plaintiffs set forth that there are facts in the record to show that pumps 5 and 6 involve a dispenser unit shared by each other, and is the same dispenser unit that was discarded on July 26, 2002. They cite a summary of service and repairs of Sheetz that shows that one year prior to the accident, the nozzle on pump 5, 87 octane, had been replaced because it would not shut off automatically. The calibration of the pumps was questioned by customers on two occasions. All pumps were inoperable on four occasions. The 87 octane dispenser on pump 5 was not working properly a few weeks after June 27, 2002. In Schroeder v. Commonwealth of Pennsylvania, Department of Transportation, 710 A.2d 23 (Pa. 1998), the Supreme Court of Pennsylvania stated that the "case presents the Court's first opportunity to address whether product liability defendants and a non-product liability defendant are entitled to summary judgment when the plaintiff has allegedly failed to preserve a defectively-designed product." To resolve that issue, the Court adopted the three-part test set forth in Schmid v. Milwaukee Electric Tool Corporation, 13 F.3d 76 (3rd Cir. 1994). In that case the -5- 04-3001 CIVIL TERM Court of Appeals stated that in deciding the proper penalty for the spoliation of evidence, a court must examine: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. In Schroeder, Navistar International Transportation designed and manufactured the cab and the chassis of a truck that it sold to Sheetz Truck Center. Gary and Kelly Schroeder bought the truck from Sheetz. Gary Schroeder was driving it on a road when he lost control, crossed into another lane, struck an embankment and turned over. A fire ignited and Schroeder was killed. The truck's remains were taken to a towing facility. Margala & Sons Salvage purchased the remains through an insurance adjuster. An attorney for Schroeder asked Margala not to destroy the truck's cab until arrangements could be made to examine it. Margala agreed, but later sold some of the truck's parts. Schroeder instituted suit against Navistar, Sheetz Truck Center, and PennDOT. The claim against PennDOT alleged the creation of dangerous road conditions and failure to warn. Negligence, strict liability and breach of warranty were alleged against Navistar and Sheetz for manufacturing and selling a truck that was not crashworthy. All defendants filed motions for summary judgment alleging that Schroeder had failed to preserve the truck for litigation purposes. The motions were granted. The Supreme Court of Pennsylvania reversed the Commonwealth Court's affirmance of the summary judgments. The trial court found that Schroeder was at fault -6- 04-3001 CIVIL TERM for signing over the truck's title to an insurance company before filing suit. The Supreme Court noted that, nonetheless, Schroeder's counsel had asked Margala & Sons to preserve the truck before the title was transferred. The Court stated: Although Schroeder's action ultimately led to the loss of the truck, summary judgment motions do not support that the transfer was negligent or in bad faith. Given the request for preservation before the transfer and the conflicting evidence as to how long the preservation was to last, we cannot conclude. . . that Schroeder's fault entitles Appellees to summary judgment. The Court noted that because Schroeder's product liability claim was based on a design defect as to all trucks of its kind, the prejudice to the Appellees is not great. Since Appellees may test and inspect other trucks for the alleged design defect, a lesser sanction such as a jury instruction of the spoliation inference is warranted. Appellees may present evidence of spoliation at trial and court may instruct the jury that it may infer that the truck's parts would have been unfavorable to Schroeder. . . . the burden of proof remains on Schroeder to prove that a product defect caused her harm. The Court further noted that Penn DOT suffered even less prejudice from the loss of the product than the product liability defendants. PennDOT could defend the claims brought against it since they had to do with the condition of the roadway and not the truck itself. In Tenaglia v. Proctor & Gamble, Inc., 737 A.2d 306 (Pa. Super. 1999), a pharmacist at a Rite Aid drug store was injured opening a cardboard box containing packages of diapers manufactured by Proctor & Gamble. The box remained in the store after the incident, and was examined by the pharmacist later in the day. She informed her store manager of the incident and her injury. She neither requested that -7- 04-3001 CIVIL TERM the box be saved nor did she make any attempt to preserve it. She knew that it would be destroyed in a crusher in a basement on the premises, where it is believed that it was ultimately destroyed. Suit was instituted against Proctor & Gamble, alleging that the box contained excess glue that rendered it unusually difficult to open. Proctor & Gamble filed a motion for summary judgment, claiming that plaintiff was responsible for spoliation of the evidence. The judgment was granted. On appeal, the Superior Court of Pennsylvania stated that the test under Schroeder "is a balancing of all three prongs, based upon the facts of each specific case." The Court concluded that the plaintiff bore a degree of fault for the spoliation of the allegedly defective box that caused her injury. She had an opportunity to preserve it before it was destroyed. However, summary judgment is not mandatory simply because the plaintiff bore some degree of fault for the failure to preserve the box. The Court concluded that it was clear that defendant was severely prejudiced by the destruction of the evidence. She was alleging a manufacturing defect in a specific box rather than a design defect of an entire product line. When pursuing a cause of action for a manufacturing defect, the preservation of the product is even more crucial than when pursuing an action on the basis of a design defect. However, a plaintiff may be permitted even to proceed even in a manufacturing defect case without preservation of the product, depending upon the nature of the defect and the ability of defendant to rebut the plaintiff's allegations without examination of the product. The Court concluded that the plaintiff could not proceed without preservation of the box because the nature -8- 04-3001 CIVIL TERM of the defect precluded the ability of the defendant to rebut plaintiff's allegations without examining the product. The Court added: "Moreover, we question whether [plaintiff] can establish the manufacturing defect, the presence of too much glue, without the box." Finally, in affirming the grant of summary judgment, the Court concluded that no lesser sanction was available because Proctor & Gamble was unable to determine whether the box was, in fact, defective, or the cause of any defect, without an opportunity to inspect it. In the case sub judice, we believe that the same three prong analysis done in Schroeder and Tenaglia is required even though in those cases it was the defendants, not the plaintiffs, who sought summary judgment on a claim of spoliation of evidence. On the day of plaintiff's alleged injury, she immediately notified Sheetz of the accident and how it occurred, after which a Sheetz employee wrote an incident report. Thirteen days later, plaintiff's legal representative notified Sheetz as to how she was injured, and made an allegation that Sheetz was negligent. Although the paralegal misidentified the pump number, Sheetz was aware on the date of the incident of the actual pump number. While the paralegal copied Keystone with the letter, there was no allegation of negligence against Keystone. The paralegal did not ask Sheetz to retain the pump for examination. The circumstances under which the equipment was apparently discarded do not indicate an intentional effort to destroy evidence in bad faith. Although some degree of fault may be attributed to Sheetz and Keystone for the destruction of the equipment because they knew that a claim regarding it was pending, some degree of -9- 04-3001 CIVIL TERM fault is also attributable to plaintiff for not requesting its preservation. To the extent that plaintiff is proceeding on a design defect, other similar equipment can be examined for such a defect. As to the allegations which fall into a malfunction theory, in Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, (1989), the Pennsylvania Supreme Court specifically adopted the following malfunction theory of product liability: This theory encompasses nothing more than circumstantial evidence of product malfunction. . " It permits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction. . .. It thereby relieves the plaintiff from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of the malfunction, of the absence of abnormal use and of the absence of reasonable, secondary causes for the malfunction. It appears that plaintiff can proceed under this theory without the equipment. See Gordner v. Dynetics Corp., 862 F.Supp. 1303 (M.D. Pa. 1994). To the extent that her claim involves the lack of adequate warnings as to the proper use of the equipment, having the equipment that was discarded is not necessary. Accordingly, the case differs from Tenaglia. As in Schroeder, we conclude that any prejudice suffered by plaintiff as a result of the destruction of the equipment does not warrant the entry of summary judgment against either defendant. It will be up to the trial judge, based on the evidence of spoliation at trial, as to whether an instruction should be given to the jury that they may infer that an inspection of the equipment would have been unfavorable to defendants. -10- 04-3001 CIVIL TERM ORDER OF COURT AND NOW, this ~ day of November, 2005, the motion of plaintiffs for partial summary judgment, IS DENIED. Stephanie E. Chertok, Esquire Paul F. D'Emilio, Esquire For Plaintiffs By the COl;irt, Kevin C. McNamara, Esquire For Sheetz, Inc. Wade D. Manley, Esquire For Keystone Petroleum David F. White, Esquire Adam M. Sorce, Esquire For OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group :sal -11- *AMENDED 'It PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY *NC/I'E: 'lhis aIrends the Praecipe to List filed December 1, 2005 to Please list the following case: Docket No. 2004-2798 for these cnnsolidated actions. (Check one) ( X for JURY trial at the next term of civil court. for trial without a jury. . ____....__...._.__......u.._______._....___....._____........______.___....___________._____......______........____.......__..._____.__..........___....______......__.___.......__ CAPTION OF CASE (entire caption must be stated in full) (check one) VICKIE D. BORGOLINI AND HIRAM BORGOLINI Assumpsit ( X) Trespass Trespass (Motor Vehicle) (other) (Plaintiff) vs. SHEETZ, INC., OFW ENGINEERED SYSTEMS, OFW FUELING CCMPONENTS, RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM The trial list will be called on 12/27/05 and Trials commence on 1/23/06 (Defendant) Pretrials will be held on 1/4/06 (Briefs are due 5 days before pretrials.) vs. (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) 2004-3001 No. Civil .19 Indicate the attorney who will try case for the party who files this praecipe: C. Roy Weidner, Jr. Indicate trial counsel for other parties if known: P;ml F D'Rmi lli~-.E.sJl\!ireL-E:tephanit'_ E. Chertok, Esquire, Kevin C. McNaIlBra, Esquire,., Adam F. Sorc"" Esquire' This case is ready for trial. . ~- Signed: A. .~~ ---L7 . Print Name: C. Roy Weidner, Jr. Date: DecoTlber 5, 2005 Attorney for: Keystone Petroleum , ( c:. , PAUL F. D'EMILIO, ESQUIRE ATTORNEY LD. 16654 905 WEST SPROUL RD. SUITE 105 SPRINGFIELD, PA 19064 610-338-0338 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURTID: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717-249-1177 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLINI AND HIRAM BORGOLINI HUSBAND AND WIFE VS. : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : NO. 04-2798 CIVIL : JURY TRIAL DEMAND : CIVIL ACTION VICKIE D. BORGOLINI AND HIRAM BORGOLINI HUSBAND AND WIFE VS. : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA : NO. 04-3001 CIVIL V SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : JURY TRIAL DEMAND : CIVIL ACTION RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Stephanie E. Chertok, Esquire, and Paul F. D'Emilio. Esquire counsel for plaintiff in the above action, respectfully represents that: I. The above-captioned action is at issue. 2. The claim of plaintiff in the action is $35,000.00. The counterclaim of the defendant in the action is none. 1 v The following attorneys are interested in the case(s) as counselor are otherwise disqualified to sit as arbitrators: Paul F. D'Emilio. Esquire and Stephanie E. Chertok. Esquire. attornevs for Plaintiffs. and C. Rov Weidner. Esquire. of Johnson. Duffie. Stewart & Weidner, attornevs for Defendant, and David F. White, Esquire, and Adam Sorce, Esquire, of Marshall. Dennehev, Warner. Coleman & Goggin, attornevs for Defendant, and Kevin C. McNamara, Esquire, of Thomas, Thomas & Hafer, LLP, attorneys for Defendants. WHEREFORE, your petitioner prays that your Honorable Court appoint three (3) arbitrators to whom the case shall be submitted. ORDER OF COURT AND NOW, this Petition, day of ,200 , in consideration of the foregoing ,Esquire, ,Esquire, and ,Esquire are appointed as arbitrators in the above- captioned action as prayed for. By the Court, P.l. 2 . PAUL F. D'EMILIO, ESQUIRE ATTORNEY J.D. 16654 905 WEST SPROUL RD. SUITE 105 SPRINGFIELD, P A 19064 610-338-0338 STEPHANIE E. CHERTOK, ESQUIRE P A SUPREME COURT ID: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717-249-1177 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLINI AND HIRAM BORGOLINI HUSBAND AND WIFE VS. : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : NO. 04-2798 CIVIL : JURY TRIAL DEMAND : CIVIL ACTION VICKIE D. BORGOLINI AND HIRAM BORGOLINI HUSBAND AND WIFE VS. : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : NO. 04-3001 CIVIL : JURY TRIAL DEMAND : CIVIL ACTION CERTIFICATE OF SERVICE I, Stephanie E. Chertok, Esquire, hereby certify that a true and correct copy ofthe Plaintiffs' Petition for Appointment of Arbitrators was served on this _ day of ,200_, by first-class U. S. Mail, upon those listed below: C. Roy Weidner, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne,PA 17043-0109 3 . Adam Sorce, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 620 Germantown Pike, Suite 350 Plymouth Meeting, P A 18426-1056 Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg,PA 17108 ~~ Attorneys for Plaintiff 4 ~ - ~ F ~,.j <;- "'- - ~ '" " -l "- V, ~ ':'\ -<I ~L -.c ,~, .::.fi '- ._~ i;1'2 1 (J'i r0 ~<:- -..J PAUL F. D'EM1LIO, ESQUIRE ATTORNEY J.D. 16654 905 WEST SPROUL RD. SUITE 105 SPRINGFIELD, PA 19064 610-338-0338 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT 10: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717-249-1177 ATTORNEYS FOR PLAINTIFFS SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA : NO. 04-2798 CIVIL / VICKIE D. BORGOLINI AND HIRAM BORGOLINl HUSBAND AND WIFE VS. : JURY TRIAL DEMAND : CIVIL ACTION VICKIE D. BORGOLINI AND HIRAM BORGOLINI HUSBAND AND WIFE VS. : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : NO. 04-3001 CIVIL : JURY TRIAL DEMAND : CIVIL ACTION RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Stephanie E. Chertok, Esquire, and Paul F. D'Emilio, Esquire counsel for plaintiff in the above action, respectfully represents that: I. The above-captioned action is at issue. 2. The claim of plaintiff in the action is $35,000.00. The counterclaim of the defendant in the action is none. I - . The following attorneys are interested in the case(s) as counselor are otherwise disqualified to sit as arbitrators: Paul F. D'Emilio, Esquire and Stephanie E. Chertok, Esquire, attorneys for Plaintiffs, and C. Roy Weidner, Esquire, of Johnson, Duffie, Stewart & Weidner, attorneys for Defendant, and David F. White, Esquire, and Adam Sorce, Esquire, of Marshall, Dennehev, Warner, Coleman & Goggin, attorneys for Defendant, and Kevin C. McNamara, Esquire, of Thomas, Thomas & Hafer, LLP, attorneys for Defendants. WHEREFORE, your petitioner prays that your Honorable Court appoint three (3) arbitrators to whom the case shall be submitted. ORDER OF COURT ,200-,,-, in consideration of the foregoing , . ;)1./fL ,Esquire, and y arbitrators in the above- captioned action as prayed By~urt0 __ .. ("- --;;-; ~v \/'~C~\-1~ PJ. 2 .. . PAUL F. D'EMILlO, ESQUIRE ATTORNEY J.D. 16654 905 WEST SPROUL RD. SUITE 105 SPRINGFIELD, PA 19064 610-338-0338 STEPHANIE E. CHERTOK, ESQUIRE PA SUPREME COURT ID: 52651 61 WEST LOUTHER STREET CARLISLE, PA 17013 717-249-1177 ATTORNEYS FOR PLAINTIFFS VICKIE D. BORGOLINI AND HIRAM BORGOLINI HUSBAND AND WIFE VS. : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : NO. 04-2798 CIVIL : JURY TRIAL DEMAND : CIVIL ACTION VICKIE D. BORGOLINl AND HIRAM BORGOLINl HUSBAND AND WIFE VS. : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY PENNSYLVANIA SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP, and KEYSTONE PETROLEUM : NO. 04-3001 CIVIL : JURY TRIAL DEMAND : CIVIL ACTION CERTIFICATE OF SERVICE I, Stephanie E. Chertok, Esquire, hereby certify that a true and correct copy of the Plaintiffs' Petition for Appointment of Arbitrators was served on this _ day of , 200_, by first-class U.S. Mail, upon those listed below: C. Roy Weidner, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box] 09 Lemoyne,PA 17043-0109 3 ., Adam Sorce, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 620 Germantown Pike, Suite 350 Plymouth Meeting, PA 18426-1056 Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 ~~~ Attorneys for Plaintiff 4 p;~ ("_.. '~-'l ;('1 .-:1 -'i i',-\ C:"; - .. _..J LAW OFFICES OF STEPHEN J. HOGG 19 S. HANOVER STREET SUITE 101 CARLISLE, PA 17013 VICKIE D. BORGOLlNI and HIRAM BORGOLlNI Plaintiffs vs. :IN THE COURT OF COMMON :PLEAS OF CUMBERLAND :COUNTY, PENNSYLVANIA :NO. 04-3001 CIVIL TERM SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENENTS,: RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM, :JURY TRIAL DEMANDED Defendants ORDER Appointed Arbitrator, Attorney Stephen J. Hogg, is not available to sit for that position regarding the above matter on May 31,2006 at 10:00 a.m. Attorney.James K. Jones is available and is substituted in his stead. Date: ~) 2JaL ~ o C <:0" ""DD> f1'"! rr, :;~~T' -;r>"r- C/,:,;:' ~I~~~' ~'(-: l:>. (~.:: 3 , r-..;I = = CJ"'> ::JI: > -< ~ ~:n ~~ -,- '-, ..~"Tl ~~ -I ~ o -0 ::J: ~ N W I. ~ VICKIE D. BORGOLINI and HIRAM BORGOLINI, In The Court of Common Pleas of Cumberland Plaintiff County,PennsylvaniaNo...QL- 3001 Civil Term SHEETZ, INC. , OPW ENGINEERED SYST~lldant Civil Action - Law.. OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE 0 th ~1lt't9mfuf1affirm) that we will s:pport, obey and defend the Constitution of the United States and the Constitution ~&hl~iW11lmQJlwealth and that we will discharge the duties of our office with fidelity. Signature Signature Signature Name (Chairman) Name Name Law Firm Law Firm Law Firm Address Address Address City, Zip City, Zip City, Zip Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) We find in favor of Defendants and against Plaintiffs in accordance with the attached Oath and Award, both of which are incorporated herein by reference as though fully set forth. Date of Hearing: May 31, 2006 DMeofAward: May 31, 2006 . Arbitrator, dissents. (Insert name if applicable.) d!~ F~ Wayne . Shade (Chairman) Notice of Entry of Award Now,the 1P dayofQ,1 ,200' ,at /0:0" ,L.M.,theaboveawardwas entered upon the docket and notice the/eof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ .290. (}T) } By: . , 80 :01111,1 L.. 'Y'r soal ,.:Ill :10 1,11:1 r ~ . . VICKIE D. BORGOLINI and HIRAM BORGOLlNI, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. : NO. 04-3001 CIVIL TERM I I. SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM, Defendants : JURY TRIAL DEMANDED OATH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. tu ~ wayn~hade, Chairman 53 West Pomfret Street Carlisle, PAl 7013 ~. . .. . .. AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages Jar delay are awarded, they shall be separately stated) We find in favor of Defendants and against Plaintiff. Date of Hearing: May 31, 2006 w~~ Wayne . Shade, ChaIrman 53 West Pomfret Street ... fa. If 0/ Carlisle, PA 17013 Date of A ward: May 31, 2006 J . Jones, Es 7 ine Row Carr Ie, PA 17013 jj, /1'i'l.J.. 01( 10 ;)71' NOT1CEOFENTRYOF AWARD NOW, the 31st day of May, 2006, at_:__.M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrator's compensation to be paid upon appeal: $ By: Prothonotary Deputy tt; -\ 'i~ E \ \f~~ ~ >: -SO' S? ~ , ., ':> <::> (' ? t;::'! r;;.:; t> '._',..,> -ri , _.\ -^'~ (~ (-' C.\ ~ THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Defendant Sheetz, Inc. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3001 VICKIE D. BORGOLlNI and HIRAM BORGOLlNI v. CIVIL ACTION - LAW SHEETZ, INC., OP'N ENGINEERED SYSTEMS, OP'N FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM JURY TRIAL DEMANDED Defendants PRAECIPE TO ENTER JUDGMENT AND NOW, this :2%~ay of ~""O + , 2006, no appeal having been taken from the Arbitrators' Award in the above-captioned matter, enter judgment on the award in favor of Defendant Sheetz, Inc. and against Plaintiffs. DATE: ~/:rf'/o ~ THO~r' THOMAS & HAFER, LLP By: K::- c... -vvlcr1~ Kevin C. McNamara, Esquire Attorneys for Defendant Sheetz, Inc. JUDGMENT AND NOW, this .lD~ay of 1)f4~' 2006, judgment is entered as above requested in favor of Defendant Sheetz, Inc. and against Plaintiffs. CURTIS R. LONG, PROTHONOTARY (d~ _ 447977-1 . . CERTIFICA TE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United States mail, postage prepaid, on th~~ of ~(A.O f. , 2006: Paul F. D'Emilio, Esquire PULEO & D'EMIUO, LLC 660 Sentry Parkway, Suite 210 Blue Bell, PA 19422 Stephanie E. Chertok, Esquire 61 West Louther Street Carlisle, PA 17013-2936 C. Roy Weidner, Esuire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Adam M. Sorce, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 620 West Germantown Pike, Suite 350 King of Prussia, PA 19406 THOMAS, THOMAS & HAFER, LLP .JC t-VVl'()~ Kevin C. McNamara, Esquire 447977-1 ,- t -,::J f':) ~ 'i. ~ 8 (') ...., c? 0 S c::;) "{, "" - - -J -r} ~- :~::l" :r-n ~ - ~ :y:( c-: ?= c;) rnF ~ (..) --tfT". "-'f - 0 ,--, t ~ -3 ~~') 0' ! :;:~ -~?~ ("'" l. ~_. en .... ~i:.: r:-? .') ) .'-\ ~ =< 0'1 5; (.J .< "':Johnson, Duffie, Stewart & Weidner By: C. Roy Weidner, Jr. I.D.No.19530 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Keystone Petroleum VICKIE D. BORGOLlNI and HIRAM BORGOLlNI, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-3001 v. CIVIL ACTION - LAW SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM, JURY TRIAL DEMANDED Defendants PRAECIPE TO ENTER JUDGMENT AND NOW, this a~y of August, 2006, no appeal having been taken from the Arbitrators' Award in the above captioned matter, enter judgment on the award in favor of Defendant Keystone Petroleum, Inc. and against Plaintiffs. :281890 a~EIDNER . oy Weidner, Jr. JUDGMENT AND NOW, this 71 ~ay of ~ . , 2006, judgment is entered as above requested in favor of Defendant Keystone Petroleum, Inc. and against Plaintiffs. CUR~ L~ ~,PROT By: Deputy -" CERTIFICA TE OF SERVICE J} J fI/7 AND NOW, this f:i..:1- day of August, 2006, the undersigned does hereby certify that she did this date serve a copy of the foregoing document 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: Paul F. D'Emilio, Esquire Law Offices of Paul F. D'Emilio 905 West Sproul Road, Suite 105 Springfield, PA 19064 Stephanie E. Chertok, Esquire 61 West Louther Street Carlisle, PA 17013 Kevin C. McNamara, Esquire Thomas, Thomas & Hafer 305 NORTH Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Adam M. Sorce, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 620 Freedom Business Center, Suite 300 King of Prussia, PA 19406 JOHNSON, DUFFIE, STEWART & WEIDNER BY/1~dfJ! ~~ ichelle H. Spangler . "--' t "}:::) ~ '""9. II tt -.0 .. '> ty 1. ) ~ -- -n -.. ~-0 C/l "..~ ~ I ~.~~ .j ,I, ~ ~j I 11l ......l ~ ~ -.~: ... f: -~,.. - ,j . . .~."- t-"" r---. ~~:..J 1'- -<:;. - - . J ~ MARSHALL, DENNE HEY, WARNER, COLEMAN & GOGGIN BY: DAVID F. WHITE, ESQ. ADAM M. SORCE, ESQUIRE IDENTIFICATION NO. 55738/88711 620 Freedom Business Center, Suite 300 King of Prussia, P A 19406 (610) 354-8250 (610) 354-8499 (FAX) dfwhite(a>,mdwc2.com amsorce(a>,mdwc2.com Attorneys for Defendants OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group VICKIE D. BORGOLINI and HIRAM BORGOLINI, h/w COURT OF COMMON PLEAS CUMBERLAND COUNTY v. SHEETZ, INC. OPW ENGINEERED SYSTEMS RICHARDS INDUSTRIES VALVE GROUP and KEYSTONE PETROLEUM NO. 04-3001 CIVIL AND NOW, this /"dayof 2006, no appeal having been taken from the Arbitrators' Award in the above capti ed matter, enter judgment on the Award in favor of Defendants OPW ENGINEERED SYSTEMS, OPW FUELIN RICHARDS INDUSTRIES VALVE GROUP, and ag . aint' s. ~ DA F. ITE, ESQ. JUDGMENT AND NOW, this ~y of S"1~+ ,2006, Judgment is entered as above requested in favor of Defendants OPW GINEERED SYSTEMS, OPW FUELING COMPONENTS; and RICHARDS INDUSTRIES VALVE GROUP and against Plaintiffs. \26 _A \LIAB\AMSORCE\TRLD\814252\KMDOUGHERTY\12180\02278 , CERTIFICATE OF SERVICE I, Adam Sorce, Esquire, do hereby certify, that I did cause to be mailed the enclosed Praecipe to Enter Judgment and Notice of Judgment, upon all parties by first class mail on the date indicated to the below listed: Paul F. D'Emilio, ESQ. PULEO & D'EMILIO, LLC 660 Sentry Parkway, Suite 210 Blue Bell, P A 19422 Stephanie E. Chertok, Esquire 61 West Louther Street Carlisle, P A 170] 3 C. Roy Weidner, Jr., Esq. Wade D. Manley, Esq. JOHNSON DUFFIE STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, P A 17043 Kevin C. McNamara, Esq. THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 900 Harrisburg, P A 1 7108 Date: y- Ji < ~ C ^=:J ~ ~ -1f:. ^ ~ l C> - D (i ~. ~ ~ (._, ..~ .. ~ :::J , .. ., ~ .. ~ - "r-' --- ~ -. - ~ - ,t +-- ''>..0 ;1 --L- ... .. ~. ( ,-