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HomeMy WebLinkAbout10-4874SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor e~~ltr at ~ttmbrrt~'~ ~~ t,1 >, ` ~?FFiCE:,~` ?~'E SyEE~1FF / ~ ~'~{ ,, Maura A. Fry (et al.) vs. Case Number Whirlpool Corporation (et al.) 2010-4874 SHERIFF'S RETURN OF SERVICE 07/28/2010 On this date Ronny R. Anderson, Sheriff mailed the within Complaint and Notice by certified mail, return receipt requested to Whirlpool Corporation. 07/28/2010 On this date Ronny R. Anderson, Sheriff mailed the within Complaint and Notice by certified mail, return receipt requested to Exel, Inc. 07/30/2010 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he served the within Complaint and Notice upon the within named defendant, Exel, Inc., in the following manner: On July 28, 2010 the Sheriff mailed by certified mail, return receipt requested a true and correct copy of the within Complaint and Notice to the defendant's last known address of 570 Polaris Parkway, Westerville, OH 43082. The certified mail return receipt card was received by the Cumberland County Sheriffs Office signed by Alison Shreffler on July 30, 2010. 08/02/2010 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he served the within Complaint and Notice upon the within named defendant, Whirlpool Corporation, in the following manner: On July 28, 2010 the Sheriff mailed by certified mail, return receipt requested a true and correct copy of the within Complaint and Notice to the defendant's last known address of MD No. 1705, 2000 M63, Benton Harbor, MI 49022. The certified mail return receipt card was received by the Cumberland County Sheriffs Office signed by A. Taylor on August 2, 2010. SHERIFF COST: $59.12 August Oti, 2010 ^ Complete kerns 1, 2, and 3. Also complete A. Slgna ~~ item 4 if Restricted Delivery is desired. ^ Print your name and address on the reverse X • so that we can return the card to you. B ~~„~„~~~ ~ ~~ ^ Attach this card to the back of the mallpiece, ~• or on the front if space permits. 1. Article Addressed to: D. ~ ~~' ~f ~ d ~ h~ 1? M YES, enter delivery address bebw: Whirlpool Corporation MD No, 1705 2000 M63 >genton Harbor, MI 49022 SO ANSWERS, RON R ANDERSON, SHERIFF ^ Agent ^ Addressee late of Delivery r ~j ^ Yes ^ No 3. Service Type ~Certlfled Mall ^ Express Mall ^ Registered ^ Return Receipt for Merchandise 2 010 - 4 8 7 4 ^ Insured Mail , ^ .C.O.D. 4. Restricted Delivery? (Extra Fee) ^ Yes 2. Article Number (Transfer fromservke/ab~ 7006 0810 0000 7881 7809 PS Form 3811, February' 2004 DanNlic fa~Wrn FNpdpt 102595-02-M-1540 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID No. 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 07040-01045 Attorney for Defendant Penske Logistics LLC 01o1o #.m is Au 3:.gq T?l u Jiv;L MAURA A. and BRIAN C. FRY Plaintiffs VS. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No. CV-10-4874 CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned on behalf of Defendant, Penske Logistics, LLC in the above captioned case. MARSHALL DENNEHEY WARNER COLENLkN &-6IJGGIN By: Christop er M. Reeser, Esquire Attorney for Defendant Penske ID# 73672 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Dated: August 10, 2010 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 7 ` By: Christopher M. Reeser, Esquire *01/01 AM is P#4 Ststq ID No. 73632 r,- `: ? j ; 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 07040-01045 Attorney for Defendant Penske Logistics LLC MAURA A. and COURT OF COMMON PLEAS BRIAN C. FRY CUMBERLAND COUNTY PENNSYLVANIA Plaintiffs No. CV-10-4874 VS. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED CIVIL ACTION - LAW PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Nicholas A. Veronis, Esquire Hagelgans & Veronis 233 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs Exel, Inc. 570 Polaris Parkway Westerville, OH 43082 Defendant William D. Kennedy, Esquire White and Williams, LP One Westlakes 1235 Westlakes Boulevard, Suite 310 Berwyn, PA 19312 Attorney for Defendant LIT Whirlpool Corporation MD No. 1705 2000 M63 Benton Harbor, MI 49022 Defendant You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default judgment maybe filed against you. Dated: August 10, 2010 Christopher M. Reeser v 05/625187.v1 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID No. 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 07040-01045 Attorney for Defendant Penske Logistics LLC MAURA A. and BRIAN C. FRY Plaintiffs VS. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No. CV-10-4874 CIVIL ACTION - LAW JURY TRIAL DEMANDED 1. Denied. Answering Defendant does not have sufficient information to form a belief as to the truth or falsity of the allegation in Paragraph 1. 2. Denied that Penske Logistics, LLC is a corporation. Penske Logistics, LLC is a Limited Liability Company. Penske Logistics, LLC has a principle place of business located at Route 10, Green Hills, Reading, Berks County, Pennsylvania, 19603. 3. Denied. Answering Defendant does not have sufficient information to form a belief as to the truth or falsity of the allegation in Paragraph 3 and proof thereof is demanded at trial. 4. Denied. Answering Defendant does not have sufficient information to form a belief as to the truth or falsity of the allegation in Paragraph 4 and proof thereof is demanded at trial. 5. Admitted upon information and belief. 6. Admitted in part and denied in part. It is admitted that on or about August 5, 2008, plaintiff was on the property located at 6 Logistics Drive in Carlisle, Pennsylvania. The remainder of the allegations in Paragraph 6 are denied pursuant to Pa.R.C.P. 1029(e). 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted in part and denied in part. It is admitted that defendant Whirlpool and defendant Penske had entered into a Warehouse Services Agreement to perform certain functions involving defendant Whirlpool's products. It is denied that that Warehouse Services Agreement was completely in effect as the property identified in the Warehouse Services Agreement was at 1485 West Commerce Avenue, Carlisle, PA 17013. Additionally, when Whirlpool moved its Carlisle operations to the 6 Logistics Drive, Carlisle, PA location, Penske Logistics' employees were notified by representatives of LIT and/or Exel that LIT or Exel was responsible for exterior maintenance of the "subject property" including lawn, shrubbery and other landscaping. 11. Denied. The Warehouse Services Agreement pertain to seven warehouse locations, none of which is located at 6 Logistics Drive, Carlisle, PA. When Whirlpool moved its facility from Commerce Drive to 6 Logistics Drive, employees of Penske Logistics, LLC were notified by defendant LIT and defendant Exel that the landlord would be responsible for exterior maintenance of the "subject property" including lawn, shrubbery and other landscaping. 12. Defendant Penske admits this allegation in part and denies it in part. It is admitted that some portions of the "subject property" were under the supervision of defendant Penske and that Penske had certain obligations with regard to the property. It is denied that Penske controlled or possessed "the subject property" and denies that defendant Penske had control, possession or any specific obligation as it pertained to the area where plaintiff Brian Fry claims to have been injured. 13. Admitted. 14. The allegation in Paragraph 14 is a legal conclusion to which no responsive pleading is required. To the extent that the allegation in Paragraph 14 is deemed to be factual, that allegation is denied pursuant to Pa.R.C.P. 1029(e). 15. Denied pursuant to Pa.R.C.P. 1029(e). 16. Denied pursuant to Pa.R.C.P. 1029(e). 17. Denied pursuant to Pa.R.C.P. 1029(e). 18. Denied pursuant to Pa.R.C.P. 1029(e). 19. Denied pursuant to Pa.R.C.P. 1029(e). 20. Admitted in part and denied in part. It is admitted that plaintiff Brian Fry was permitted to enter onto the "subject property" for business purposes including hooking up his tractor to trailers. The allegation that plaintiff Fry was a "business invitee" is a legal conclusion to which no responsive pleading is required. 21. The allegation in Paragraph 21 is a legal conclusion to which no responsive pleading is required. COUNTI PW-oWs Maura A. and Brian C. Fry v. Defeadant Penske Lwdstls. LLC N ence 22. No responsive pleading required. 23. The allegations of Paragraph 23 and subparagraphs 23(a)-23(q) are legal conclusions to which no responsive pleading is required. To the extent that the allegations in Paragraph 23 and subparagraphs 23(a) -23(q) are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 24. Denied pursuant to Pa.R.C.P. 1029(e). 25. The allegation in Paragraph 25 is a legal conclusion to which no responsive pleading is required. 26. Denied pursuant to Pa.R.C.P. 1029(e). 27. Denied pursuant to Pa.R.C.P. 1029(e). 28. Denied pursuant to Pa.R.C.P. 1029(e). 29. Denied pursuant to Pa.R.C.P. 1029(e). 30. Admitted that plaintiffs allege that their injuries and damages exceed the applicable limits of arbitration and demand a jury trial. It is denied that plaintiffs' injuries and damages exceed the applicable limits of arbitration. WHEREFORE, Defendant Penske Logistics, LLC requests judgment be entered in its favor. COUNT II PtaigtHfa Maura A. and Brian C. Fry v. Defendant LIT Industrial Limit d Partnership N ence 31-39. The allegations in Paragraphs 31-39 are directed at a party other than Answering Defendant and therefore no responsive pleading is required. WHEREFORE, Defendant Penske Logistics, LLC requests judgment be entered in its favor. COUNT III Plaintiffs Maura A. and Brion C. Fry v. Defendant EgeL Inc. N ence 40-48. The allegations in Paragraphs 40-48 are directed at a party other than Answering Defendant and therefore no responsive pleading is required. WHEREFORE, Defendant Penske Logistics, LLC requests judgment be entered in its favor. COUNT IV Matiffs Maura A. and Brian C Fry v Defendant Wktirloool Cornoratkm N ence 49-57. The allegations in Paragraphs 49-57 are directed at a party other than Answering Defendant and therefore no responsive pleading is required. WHEREFORE, Defendant Penske Logistics, LLC requests judgment be entered in its favor. COUNT V Plaintiffs Maura A. Fry v. All Defendants Loss of Consortium 58. No responsive pleading required. 59. Denied pursuant to Pa.R.C.P. 1029(e). 60. Denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant Penske Logistics, LLC requests judgment be entered in its favor. NEW MATTER 61. Plaintiffs' claims are barred or limited by the Pennsylvania Comparative Negligence Act, 42 PA.C.S. §7102. 62. Upon information and belief, Plaintiff Brian C. Fry suffered from pre-existing conditions which may be the cause of any of his present complaints. 63. To the extent that there was a dangerous or defective condition on Defendant's property, which is specifically denied, Defendant did not create and were not on notice of said dangerous condition. 64. Plaintiffs' claims or any amendment to those claims may be barred by the applicable statute of limitations. 65. Under Pennsylvania law, the amount of medical expenses in which a plaintiff can recover is limited to the amount paid to satisfy the medical charges. The recoverable amount is not the amount billed by the medical provider. 66. Plaintiffs' claim may be barred or limited by the provisions of the Pennsylvania Worker's Compensation Act. 67. Penske Logistics, LLC was not responsible for maintaining the property in good repair. Upon information and belief, defendants LIT and/or Excel were responsible for keeping the property in good repair. WHEREFORE, Defendant Penske Logistics, LLC requests judgment be entered in its favor. CROSSCLAIM PURSUANT TO Pa.R.C.P.1031.1 DEFENDANT PENSKE LOGISTICS, LLC vs. LIT INDUSTRIAL LIMITED PARTNERSHIP AND EXEL. INC. 68. Paragraphs 1-67 of defendant Penske Logistics, LLC Answer and New Matter are incorporated herein by reference as if set forth at length. 69. Defendant Penske Logistics, LLC joins co-defendant LIT Industrial Limited Partnership and Exel, Inc. to protect Penske Logistics, LLC's right of contribution based on the averments made against co-defendants LIT Industrial Limited Partnership and Exel, Inc. in plaintiffs' Complaint which are incorporated herein without adoption. WHEREFORE, Defendant Penske Logistics, LLC requests judgment be entered in its favor and against LIT Industrial Limited Partnership and Exel, Inc. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN IN By: Chris er M. Reeser, Esquire Attorney for Defendant Penske Logistics, LLC ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Dated: August 10, 2010 VERWATKXN` L M try Am Sch na k y goo and svW the I have read the ft i"$ which has boon dratted by my counseh. The &cttW its containrad"ft ein am tmc axd correct to the but of my knowkd ; itt#'ormatitm OW b Wf a#dmuo rho language' is that of my cwt, Xr4 to ON acmt the tbv content of the dot is t of Wmrssi, T :t+d upon coumd in making this Verification. This smart is made subject to the patut as of 18 Pa.C.S. § 4904 rekaing to unsworn famfi+catim to au tiff a rsWAw r MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID No. 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 07040-01045 Attorney for Defendant Penske Logistics LLC MAURA A. and BRIAN C. FRY Plaintiffs VS. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No. CV-10-4874 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE rl=5 '&' v ;., ? w t.. ; `i 1, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on August 10, 2010,1 served a copy of Defendant Penske Logistics, LLC's Entry of Appearance and Answer with New Matter via First Class United States mail, postage prepaid as follows: Nicholas A. Veronis, Esquire Hagelgans & Veronis 233 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs William D. Kennedy, Esquire White and Williams, LP One Westlakes 1235 Westlakes Boulevard, Suite 310 Berwyn, PA 19312 Attorney for Defendant LIT Industrial Exel, Inc. Whirlpool Corporation 570 Polaris Parkway MD No. 1705 Westerville, OH 43082 2000 M63 Defendant Benton Harbor, MI 49022 Defendant Christop er M. Reeser HAGELGANS & VERONIS Nicholas A. Veronis, Esquire Identification No.: 46523 223 N. Duke Street Lancaster, PA 17602 Telephone: (717) 295-7009 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MAURA A. and BRIAN C. FRY, Plaintiffs VS. PENSKE LOGISTICS LLC, and LIT INDUSTRIAL LIMITED : PARTNERSHIP and : EXEL, INC. and : WHIRLPOOL CORPORATION, Defendants Civil Action No.: 104874 9, X JURY TRIAL DEMANDEI ACCEPTANCE OF SERVICE I, Christopher M. Reeser, of the law firm of Marshall, Dennehey, Warner, Coleman & Goggin, accept service of Plaintiffs' Complaint on behalf of Defendant, Penske Logistics LLC, and certify that I am authorized to do so. Christopher M. Reeser, Attorney for Defendant, Penske Logistics LLC 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: -7/ 3a ho HAGELGANS & VERONIS Qwo Auto 93 PM 3:9.1 Nicholas A. Veronis, Esquire Identification No.: 46523 223 N. Duke Street Lancaster, PA 17602 Telephone: (717) 295-7009 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MAURA A. and BRIAN C. FRY, Plaintiffs VS. Civil Action No.: 10-4874 PENSKE LOGISTICS LLC, and LIT INDUSTRIAL LIMITED PARTNERSHIP JURY TRIAL DEMANDED and EXEL, INC. and WHIRLPOOL CORPORATION, Defendants PLAINTIFFS' REPLY TO DEFENDANT, PENSKE LOGISTICS LLC'S, ANSWER WITH NEW MATTER 61. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, it is specifically denied that Plaintiffs' claims are barred or limited by the Pennsylvania Comparative Negligence Act, 42 Pa. C.S. §7102; therefore strict proof of said allegation is demanded at time of trial. 62. Admitted in part, denied in part. It is admitted that Brian C. Fry had knee surgeries prior to the accident. It is specifically denied that the knee injuries and three knee surgeries resulting from the subject accident set forth in Plaintiffs' Complaint had anything to do with his preexisting knee condition. On the contrary, prior to the subject accident, Brian C. Fry was physically well and able to carry out full-time employment as a truck driver without any significant: problems to his knees. No.: 10-4874 63. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, it is specifically denied that Defendant Penske did not create and was not on notice of the said dangerous or defective condition on Defendant's property; therefore, strict proof of said allegation is demanded at time of trial. 64. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, it is specifically denied that Plaintiffs' claims or amendments are barred by any Statute of Limitations. 65. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, Plaintiffs will introduce medical expenses and bills in accordance with Pennsylvania law. 66. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, it is specifically denied that Plaintiffs' claims are barred or limited by any provisions of the Pennsylvania Workers' Compensation Act; therefore, strict proof of said allegation is demanded at time of trial. 67. Denied as a conclusion of law to which no responsive pleading is required. It is specifically denied that Defendant, Penske Logistics, LLC, was not responsible for maintaining the property in good repair in that Defendant Penske had possession and control of the property at the time of Plaintiffs accident and ample opportunity to make the property safe for business invitees such as Plaintiff, Brian C. Fry. Plaintiffs admit that other Defendants may also have been responsible for keeping the property in good repair including the other Defendants named in the subject lawsuit. WHEREFORE, Plantiffs, Brian C. and Maura A. Fry, demand judgment in their favor and against Defendant, Penske Logistics, LLC, and the other Defendants as set forth in Plaintiffs' Complaint. No.: 10-4874 68 - 69. No answer required by Plaintiffs in that said cross-claims are directed to the other Defendants in this lawsuit. To the extent a response is required, Plaintiffs demand judgment against all Defendants as set forth in Plaintiffs' Complaint. HAGELGANS VERONIS 1:- DATED: BY: Nicho s A. Veronis, Esquire Attorney for Plaintiffs Attorney I.D. No.: 46523 223 North Duke Street Lancaster, PA 17602 Telephone (717) 295-7009 Facsimile: (717) 396-9746 VERIFICATION I, NICHOLAS A. VERONIS, attorney for Plaintiffs, do hereby verify that the averments made in Plaintiffs' Reply To Defendant, Penske Logistics LLC's, Answer with New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Nichola A. Veronis 7 i Date: C% = / CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing Plaintiffs' Reply To Defendant, Penske Logistics LLC's Answer With New Matter, was served by mailing, first class mail, postage prepaid, to the following: William D. Kennedy, Esquire White & Williams 1235 Westlakes Drive, Suite 310 Berwin, PA 19312 Christopher M. Reeser, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 HAGELGANS & VERONIS By: AIW) Nic olas A. Veronis, Esquire Atto ey for Plaintiffs I.D. No.:46523 223 North Duke Street Lancaster, PA 17602 Telephone: (717) 295-7009 Facsimile: (717) 396-9746 ;? _? ?; Date: HAGELGANS & VERONIS Nicholas A. Veronis, Esquire Identification No.: 46523 223 N. Duke Street Lancaster, PA 17602 Telephone: (717) 295-7009 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MAURA A. and BRIAN C. FRY, Plaintiffs VS. PENSKE LOGISTICS LLC, and LIT INDUSTRIAL LIMITED PARTNERSHIP and EXEL, INC. and WHIRLPOOL CORPORATION, Defendants Civil Action No.: 10-4874 JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I, William D. Kennedy, of the law firm of White & Williams, accept service of 0 a c W a 0 W Plaintiffs' Complaint on behalf of Defendant, LIT Industrial Limited Partnership, and certify that I am authorized to do so. William D. Kenn , Attorney for Defendant, LIT Industrial Limited Partnership 1235 West Lakes Drive, Suite 310 Berwin, PA 19312-2416 Date: 10, r° 77- av LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO pp??yy?? By: Wayne A. Graver, Esquire 1Q 5EP 13 Aq I?- I Identification No.: 190 N. Independence Mall West cUMB PEN?S,??VANA Suite 500 6r' & Race Streets Philadelphia, PA 19106 Attorney for Defendant, (215) 627-0303 Whirlpool Corporation IN THE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MAU RA A. and BRIAN C. FRY, Plaintiffs Civil Action No.: 10-4874 Civil Term VS. PENSKE LOGISTICS, LLC, and LIT INDUSTRIAL LIMITED PARTNERSHIP, and EXEL, INC. and WHIRLPOOL CORPORATION, Defendants. JURY TRIAL, DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of defendant, WHIRLPOOL CORPORATION, in the above-captioned matter. LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIo By: S " Wayne Graver, squire Counsel for Defendant WHIRLPOOL CORPORATION Date: ?,' t McNEES WALLACE & NURICK LLC Curtis N. Stambaugh PA I. D. 80565 100 Pine Street PO Box 1166 Harrisburg, PA 17108 (717) 237-5435 (717) 237-5300 facsimile cstambaughp,mwn.com FlI.E? ?r.?y ,r T} a'- IDW 14 ou, Kly PENT SYLVMA Attorneys for Defendant Exel, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAURA ti. and CIVIL TERM BRIAN C. FRY, Plaintiffs V. No. CI - 10 - 4874 PENSKE LOGISTICS LLC, and LIT INDUSTRIAL LIMITED PARTNERSHIP : and EXEL, INC. JURY TRIAL DEMANDED and WHIRLPOOL CORPORATION Defendants ENTRY OF APPEARANCE Please enter the appearance of Curtis N. Stambaugh and McNees Wallace & Nurick LLC on behalf of Defendant Excel, Inc. in the above-captioned action. Date: September 13, 2010 McNEE-SS WALLACE & NURICK LLC Curtis N. ambaugh, Esq. I.D. No. 80565 100 Pine Street, P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5435 Attorneys for Defendant Excel, Inc. CERTIFICATE OF SERVICE The undersigned hereby certifies that on the I day of September 2010, a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Nicholas A. Veronis, Esq. HAGELGANS & VERONIS 223 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs Christopher NI. Reeser, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Penske Logistics William D. Kennedy, Esq. WHITE & WILLIAMS 1235 West Lakes Drive, Suite 310 Berwin, PA 19312-2416 Attorney for Defendant Whirlpool -Ear is mbau9h . Of Counsel to Defendant Excel. Inc. 2 r: nr' LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO (' 7 11 By: Wayne A. Graver, Esquire o• Identification No.: 28245 a 0 190 N. Independence Mall West Suite 500 6"' & Race Streets Fri" 4A Philadelphia, PA 19106 Attorney for Defendant, (215) 627-0303 Whirlpool Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MAURA A. and BRIAN C. FRY, Plaintiffs vs. PENSKE LOGISTICS, LLC, and LIT INDUSTRIAL LIMITED PARTNERSHIP, and EXEL, INC. and WHIRLPOOL CORPORATION, Defendants. TO: Nicholas A. Veronis, Esquire Hagelgans & Veronis 233 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs Civil Action No.: 10-4874 Civil Term JURY TRIAL DEMANDED NOTICE TO PLEAD Christopher M. Reeser, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant, Penske Logistics, LLC William D. Kennedy, Esquire White & Williams, LP One Westlakes 1235 Westlakes Boulevard, Suite 310 Berwyn, Pa 19312 Attorney for Defendant, LIT Industrial Limited Partnership, Robert P. Corbin, Esquire German, Gallagher The Bellevue, Suite 500 Philadelphia, PA 19102 Attorney for Defendant, Exel, Inc. You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default judgment maybe fi d against you. Dated: September 13, 2010 Wayne . Graver, Esqui LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO By: Wayne A. Graver, Esquire Identification No.: 28245 190 N. Independence Mall West Suite 500 6`h & Race Streets Philadelphia, PA 19106 Attorneys for Defendant, (215) 627-0303 Whirlpool Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MAURA A. and BRIAN C. FRY, Plaintiffs : Civil Action No.: 10-4874 Civil Term vs. PENSKE LOGISTICS, LLC, and LIT INDUSTRIAL LIMITED PARTNERSHIP, JURY TRIAL DEMANDED and EXEL, INC. and : WHIRLPOOL CORPORATION, Defendants. ANSWER WITH NEW MATTER AND CROSSCLAIM OF DEFENDANT, WHIRLPOOL CORPORATION TO PLAINTIFFS' COMPLAINT After reasonable investigation, answering defendant, Whirlpool Corporation (hereinafter referred to as "Whirlpool"), is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and, therefore, the averments are denied and strict proof thereof is demanded. 2. To the extent that the averments contained in paragraph (2) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 3. To the extent that the averments contained in paragraph (3) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 4. To the extent that the averments contained in paragraph (4) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 5. Admitted with the caveat that Whirlpool's correct address for its principal place of business does not include "MD No. 1705." 6. 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, therefore, the averments are denied and strict proof thereof is demanded. 7. Admitted. 8. Admitted. 9. Answering defendant can neither admit nor deny in full, the allegations contained in this paragraph because the complete Lease Agreement was not attached to plaintiffs' Complaint. However, answering defendant does admit that paragraph 10 of the Lease Agreement between LIT Industrial Limited Partnership ("LIT") and Whirlpool Corporation ("Whirlpool"), only excerpts of which were attached to plaintiffs' Complaint. states that Landlord (LIT) shall also "...maintain in good repair and condition the parking areas and other common areas of the Building, including, but not limited to driveways, alleys, landscape and grounds surrounding the Premises ..." 10. Answering defendant can neither admit nor deny in full, the allegations contained in this paragraph because the complete Warehouse Services Agreement ("WSA") was not 2 attached to plaintiffs' Complaint. However, answering defendant does admit that Whirlpool and Penske entered into a WSA under which Penske was to provide warehouse services to Whirlpool, the term of which included the date of the subject accident. The remaining averments contained in this paragraph are specifically denied. Pursuant to the excerpts of the WSA which were attached to plaintiffs' Complaint, and excerpts of other agreements attached thereto, responsibility for maintenance and repair of the area in which plaintiff's accident occurred, rested with parties other than Whirlpool. 11. Answering defendant can neither admit nor deny in full, the allegations contained in this paragraph because the complete Warehouse Services Agreement ("WSA") was not attached to plaintiffs' Complaint. However, answering defendant does admit that paragraph 31 of the WSA entitled "MAINTENANCE ACTIVITY" states that Penske shall be the responsible party for the following maintenance activity: "Exterior maintenance including keeping lawn, shrubbery and other landscaping on WHIRLPOOL Warehouse premises neat, clean and orderly, 12. To the extent that the averments contained in paragraph (12) of plaintiffs Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure To the extent that it is alleged that the "subject property" was under the supervision, control and possession of Whirlpool, those allegations are specifically denied. Pursuant to the excerpts of the various agreements attached to plaintiffs' complaint, responsibility for maintenance and repair of the area in which plaintiff's accident occurred, rested with parties other than Whirlpool. 13. Admitted. It is admitted that Paragraph 2.(e) of the Property Management Agreement states that "In order to properly manage and lease the Premises, Exel shall have the 3 following duties and responsibilities: . . . (e) To arrange for and carry out all routine maintenance, including without limitation any landscaping, snow removal and regular maintenance of common areas and common utilities serving the Premises or the improvements thereon ..." 14. To the extent that the averments contained in paragraph (14) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. To the extent Paragraph (14) asserts allegations against Whirlpool, the averments contained in this paragraph constitute conclusions of law to which no response is required under the applicable Pennsylvania Rules of Civil Procedure. To the extent that the allegations against Whirlpool continued in Paragraph 14 are deemed to be factual, they are specifically denied. 15. 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, therefore, the averments are denied and strict proof thereof is demanded. 16. 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, therefore, the averments are denied and strict proof thereof is demanded. 17. 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, therefore, the averments are denied and strict proof thereof is demanded. 18. 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, therefore, the averments are denied and strict proof thereof is demanded. To the extent this 4 paragraph contains factual allegations against Whirlpool, it is specifically denied that Whirlpool created an unreasonably dangerous condition and/or that Whirlpool was responsible for maintaining the location at which plaintiff claims to have been injured. 19. Denied. It is specifically denied that Whirlpool had actual and/or constructive notice of an alleged hole on the subject property in which plaintiff alleges to have fallen, or that Whirlpool failed to take appropriate action with respect to any alleged hole, any responsibility for same on Whirlpool's part being specifically denied. 20. Denied. It is specifically denied that plaintiff was a "business invitee" of Whirlpool and/or was permitted by Whirlpool to go on the "subject property" for any purpose. 21. Denied. It is specifically denied that Whirlpool owed to plaintiff a specific legal duty of care as a business invitee, or was negligent in any manner. COUNTI PLAINTIFFS, MAURA A. & BRIAN C. FRY vs. DEFENDANT, PENSKE LOGISTICS, LLC NEGLIGENCE 22. Defendant incorporates by reference herein its answers to paragraphs (1) through (21) of plaintiffs' Complaint, as though said answers were fully set forth herein. 23. To the extent that the averments contained in paragraph (23) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 24. To the extent that the averments contained in paragraph (24) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 5 25. To the extent that the averments contained in paragraph (25) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 26. To the extent that the averments contained in paragraph (26) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 27. To the extent that the averments contained in paragraph (27) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 28. To the extent that the averments contained in paragraph (28) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 29. To the extent that the averments contained in paragraph (29) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 30. To the extent that the averments contained in paragraph (30) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. WHEREFORE, defendant demands judgment in its favor together with costs and attorney's fees. COUNT II PLAINTIFFS, MAURA A. & BRIAN C FRY vs DEFENDANT, LIT INDUSTRIAL LIMITED PARTNERSHIP NEGLIGENCE 6 31. Defendant incorporates by reference herein its answers to paragraphs (1) through (30) of plaintiffs' Complaint, as though said answers were fully set forth herein. 32. To the extent that the averments contained in paragraph (32) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 33. To the extent that the averments contained in paragraph (33) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 34. To the extent that the averments contained in paragraph (34) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 35. To the extent that the averments contained in paragraph (35) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 36. To the extent that the averments contained in paragraph (36) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 37. To the extent that the averments contained in paragraph (37) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 38. To the extent that the averments contained in paragraph (38) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 7 39. To the extent that the averments contained in paragraph (39) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. WHEREFORE, defendant demands judgment in its favor together with costs and attorney's fees. COUNT III PLAINTIFFS, MAURA A. & BRIAN C. FRY vs. DEFENDANT _EXEL NEGLIGENCE 40. Defendant incorporates by reference herein its answers to paragraphs (1) through (39) of plaintiffs' Complaint, as though said answers were fully set forth herein. 41. To the extent that the averments contained in paragraph (41) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 42. To the extent that the averments contained in paragraph (42) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 43. To the extent that the averments contained in paragraph (43) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 44. To the extent that the averments contained in paragraph (44) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 8 45. To the extent that the averments contained in paragraph (45) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 46. To the extent that the averments contained in paragraph (46) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 47. To the extent that the averments contained in paragraph (47) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. 48. To the extent that the averments contained in paragraph (48) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. WHEREFORE, defendant demands judgment in its favor together with costs and attorney's fees. COUNT IV PLAINTIFFS, MAURA A. & BRIAN C. FRY vs. DEFENDANT, WHIRLPOOL CORPORATION NEGLIGENCE 49. Defendant incorporates by reference herein its answers to paragraphs (1) through (48) of plaintiffs' Complaint, as though said answers were fully set forth herein. 50. Denied. It is specifically denied that Whirlpool was negligent, careless and reckless in any manner and it is further denied that Whirlpool in any way caused the accident sustained by plaintiff on August 5, 2008 in any manner, including but not limited to the allegations of negligence set forth in sub-paragraphs (a)-(r), all of which are specifically denied. 9 51. Denied. It is specifically denied that the accident and injuries described in plaintiffs' Complaint were caused solely by the negligence of Whirlpool and were in no way due to any act or failure to act on the part of plaintiff. To the contrary, Whirlpool was not negligent in any manner and was in no way the cause of plaintiffs' accident and alleged injuries. 52. Denied. It is specifically denied that plaintiff was a business invitee of Whirlpool. 53. Denied. It is specifically denied that Whirlpool was negligent in any manner herein; and it is further specifically denied that as a direct and proximate result of any alleged negligence of Whirlpool, plaintiff was caused to sustain personal injuries of any kind, including but not limited to those injuries alleged in sub-paragraphs (a)-(e). 54. Denied. It is specifically denied that as a direct and proximate result of the alleged accident and claimed resulting injuries, plaintiff has suffered and will continue to suffer damages in the future, including but not limited to, those damages set forth in paragraph 54 of plaintiffs' Complaint. 55. Denied. It is specifically denied that as a direct and proximate result of the alleged accident and claimed resulting injuries, plaintiff has incurred or will in the future incur medical and hospital bills in excess of $45,000.00 or may in the future incur additional medical expenses deemed recoverable under Pennsylvania law. 56. Denied. It is specifically denied that as a direct and proximate result of the alleged accident and claimed resulting injuries, plaintiff has incurred lost wages since the accident in excess of $75,000, has suffered a loss of earning capacity and may in the future continue to suffer financial losses which may be deemed recoverable under Pennsylvania law. 57. Admitted in part and denied in part. It is admitted that a jury trial has been demanded by plaintiffs. After reasonable investigation, answering defendant is without 10 knowledge or information sufficient to form a belief as to the truth of the remaining averments contained in this paragraph regarding plaintiffs' allegations that their damages exceed the applicable limits of arbitration, and, therefore, the averments are denied and strict proof thereof is demanded. WHEREFORE, defendant demands judgment in its favor together with costs and attorney's fees. COUNT V PLAINTIFF, MAURA A. FRY vs. DEFENDANTS, PENSKE LOGISTICS, LLC, LIT INDUSTRIAL PARTNERSHIP, EXEL, INC. AND WHIRLPOOL CORPORATION LOSS OF CONSORTIUM 58. Defendant incorporates by reference herein its answers to paragraphs (1) through (57) of plaintiffs' Complaint, as though said answers were fully set forth herein. 59. 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, therefore, the averments are denied and strict proof thereof is demanded. 60. To the extent that the averments contained in paragraph (60) of plaintiffs' Complaint refer to parties other than defendant, no response is necessary under the applicable Pennsylvania Rules of Civil Procedure. To the extent that this paragraph contains allegations of negligence against Whirlpool, it is specifically denied that Whirlpool was negligent in any manner, including but not limited to any allegations of negligence contained in Counts I through IV of plaintiffs' Complaint, and it is further specifically denied that as a result of any allegations of negligence against Whirlpool, that plaintiffs suffered any of the damages claimed in paragraph (60). 11 WHEREFORE, defendant demands judgment in its favor together with costs and attorney's fees. NEW MATTER 61. Plaintiffs' claims are barred by the applicable Statute of Limitations. 62. Plaintiffs' Complaint may have failed to state a claim upon which relief can be granted. 63. The incident described in plaintiffs' Complaint may have been caused or contributed to by plaintiffs' negligence. 64. Plaintiffs may have assumed the risk. 65. The negligent acts and/or omission of other individuals and/or entities may have constituted an intervening, superseding cause of the damages alleged to have been sustained by plaintiffs. 66. The injuries and damages alleged to have been sustained by plaintiffs were not proximately caused by defendant. 67. The losses sustained by the plaintiffs, if any, were not caused or proximately caused by defendant. 68. The losses sustained by the plaintiffs, if any, were not caused or proximately caused by any negligence, carelessness, or recklessness on the part of defendant, any such negligence, carelessness or recklessness being strictly denied. 69. Plaintiffs failed to mitigate their damages with respect to the losses alleged. 70. Any injury received or damages sustained by plaintiffs were the result, in whole or in part, of their own negligence or carelessness, and plaintiffs' claims are accordingly barred or reduced pursuant to the Pennsylvania Comparative Negligence Act. 12 71. Upon information and belief, plaintiff Brian C. Fry suffered from pre-existing conditions which may have contributed to the cause of his present complaints. 72. To the extent it has been alleged that there was a dangerous or defective condition on the subject property, which is specifically denied, Whirlpool neither created, nor was on notice of, said dangerous condition. 73. Under Pennsylvania law, the amount of medical expenses which a plaintiff may recover is limited to the amount paid to satisfy the medical charges. The recoverable amount is not the amount which may have been billed by the medical provider. 74. Plaintiffs' claims may be barred and/or limited by the provisions of the Pennsylvania Worker's Compensation Act. 75. Whirlpool was not responsible for maintaining or repairing the property in question. Upon information and belief, other entities, including defendants LIT and/or Exel were responsible for maintaining and repairing the property in question. 76. Defendant hereby reserves the right upon completion of its investigation and discovery to file such additional defenses, affirmative defenses, counterclaims and/or complaints against additional defendants as may, be appropriate. JURY DEMAND 77. A demand for jury trial is hereby made on behalf of defendant. WHEREFORE, defendant demands judgment in its favor together with costs and attorney's fees. CROSSCLAIM PURSUANT TO PA.R.C.P. 1031.1 DEFENDANT, WHIRLPOOL CORPORATION vs. LIT INDUSTRIAL LIMITED PARTNERSHIP AND EXEL, INC. 13 78. Defendant incorporates by reference herein its answers to paragraphs (1) through (77) of plaintiffs' Complaint and its New Matter, as though said answers were fully set forth herein. 79. Defendant, Whirlpool Corporation, hereby joins co-defendants, LIT Industrial Limited Partnership, and Exel, Inc., alleging that they were negligent and are therefore liable with respect to plaintiffs' claims and that Whirlpool may maintain its right of contribution and indemnity against them based upon the allegations made against them in plaintiffs' Complaint, which are incorporated herein. WHEREFORE, defendant, Whirlpool Corporation requests that judgment be entered in its favor and against LIT Industrial Limited Partnership and Exel, Inc. Respectfully submitted, LAVIN, O'NEIL, RICCI, CEDRONE & DiSIPIO BY: a A. Graver, quire tto for Defendant, WWtto eys Whirlpool Corporation PA Attorney ID No.: 28245 190 N. Independence Mall West Suite 500 6`n & Race Street Philadelphia, PA 19106 (215) 351-7912 Dated: September 13, 2010 1366564v1 14 CERTIFICATE OF SERVICE I hereby certify that on this 13th day of September, 2010, a true and correct copy of Defendant, Whirlpool Corporation's, Answer with New Matter and Crossclaim to Plaintiffs' Complaint was forwarded to counsel identified below, via First Class U.S. Mail, postage pre- paid Nicholas A. Veronis, Esquire Hagelgans & Veronis 233 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs William D. Kennedy, Esquire White & Williams, LP One Westlakes 1235 Westlakes Boulevard, Suite 310 Berwyn, Pa 19312 Attorney for Defendant, LIT Industrial Limited Partnership, Christopher M. Reeser, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant, Penske Logistics, LLC Robert P. Corbin, Esquire German, Gallagher The Bellevue, Suite 500 Philadelphia, PA 19102 Attorney for Defendant, Exel, Inc. LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO BY: Wayne/f.- Graver, Esq re Atto ys for Defenda t, Whirlpool Corporation PA Attorney ID No.: 28245 190 N. Independence Mall West Suite 500 6`h & Race Street Philadelphia, PA 19106 (215) 351-7912 15 1 ATTORNEY VERIFICATION I, Wayne A. Graver, Esquire hereby verify that I am counsel of record for defendant, Whirlpool Corporation in this matter; that I am authorized to execute this Verification on its behalf; and that to the best of my knowledge, information and belief, all of the statements set forth in the attached Answer with New Matter And Crossclaim of Defendant, Whirlpool Corporation To Plaintiffs' Complaint are true and correct. A Verification executed by Whirlpool Corporation will be substituted for this attorney Verification as soon as possible. The undersigned understands that the statements herein are made subject to the penalties permitted by law relating to unsworn falsification to authorities. BY Date: ! - /3 - /Q /WaynaGraver Curtis N. Stambaugh PA I.D. No. 80565 Tucker R. Hull I.D. No. 306426 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 FILED-OFFICE U " THE PROTHONOTARY i `I0 S7P ?O PM ?: ^t1IIIBE- '-A10 C0UNTY ':WI s= YLVA'i IA Attorneys for Defendant MAURA A. and BRIAN C. FRY, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PA V. NO. 10-4874 PENSKE LOGISTICS LLC, LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Penske Logistics, LLC, and its attorneys: You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. McNEES WALLACE & NURICK LLC B/I`'• Curtis-N. Stambaugh PA I.D. No. 80565 Tucker R. Hull I.D. No. 306426 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5342 Attorneys for Defendants Date: September, 2010 Curtis N. Stambaugh PA I.D. No. 80565 Tucker R. Hull I.D. No. 306426 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 MAURA A. and BRIAN C. FRY, Plaintiffs V. PENSKE LOGISTICS LLC, LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION, Defendants Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 10-4874 JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Whirlpool Corporation and its attorneys: You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. McNEES WALLACE & NURICK LLC By ?Cuhis N. Stambaugh PA I.D. No. 80565 Tucker R. Hull I.D. No. 306426 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5342 Attorneys for Defendants Date: September 30, 2010 Curtis N. Stambaugh PA I.D. No. 80565 Tucker R. Hull I.D. No. 306426 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 MAURA A. and BRIAN C. FRY, Plaintiffs V. Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 10-4874 PENSKE LOGISTICS LLC, LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Maura A. and Brian C. Fry and their attorneys: You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. McNEES WALLACE & NURICK LLC B Curtis N. Sta augh PA I. D. No. 80565 Tucker R. Hull I.D. No. 306426 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5342 Attorneys for Defendants Date: September>c 2010 Curtis N. Stambaugh PA I.D. No. 80565 Tucker R. Hull I.D. No. 306426 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant MAURA A. and BRIAN C. FRY, Plaintiffs V. PENSKE LOGISTICS LLC, LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 10-4874 JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFFS' COMPLAINT NOW COMES Defendant, Exei, Inc. ("Exel"), by and through its attorneys McNees Wallace & Nurick LLC, and Answers the Complaint in the above-captioned action as follows: 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 1 and the same are therefore denied. 2. This paragraph is directed to a defendant other than Exel, and, therefore, no response is required. To the extent that a response is required, the averments of paragraph 2 are denied. 3. This paragraph is directed to a defendant other than Exel, and, therefore, no response is required. To the extent that a response is required, the averments of paragraph 3 are denied. 4. Admitted. 5. This paragraph is directed to a defendant other than Exel, and, therefore, no response is required. To the extent that a response is required, the averments of paragraph 5 are denied. 6. Denied pursuant to Pa.R.Civ.P 1029(e). 7. Admitted upon information and belief. 8. Admitted upon information and belief. 9. This paragraph is directed to a defendant other than Exel, and, therefore, no response is required. To the extent that a response is required, the averments of paragraph 9 are denied. 10. This paragraph is directed to a defendant other than Exel, and, therefore, no response is required. To the extent that a response is required, the averments of paragraph 10 are denied. 11. This paragraph is directed to a defendant other than Exel, and, therefore, no response is required. To the extent that a response is required, the averments of paragraph 11 are denied. 12. Admitted in part and denied in part. It is admitted that Exel had contractual duties with respect to the property located at 6 Logistics Drive in Carlisle, Pennsylvania. The nature and extent of those duties, however, is established by a written agreement, a document which speaks for itself. The characterization of such duties is denied. 13. Admitted in part and denied in part. It is admitted that Exel agreed to perform services at the property located at 6 Logistics Drive, Carlisle, Pennsylvania. The -2- specific services Exel contracted to perform are pursuant to a written agreement, which speaks for itself. The characterization of such services is denied. 14. The averments in this paragraph are legal conclusions to which no response is required. To the extent that a response is required, the averments are denied pursuant to Pa.R.Civ.P 1029(e). 15.-20. Denied pursuant to Pa.R.Civ.P. 1029(e). 21. The averments in this paragraph are legal conclusions to which no response is required. To the extent that a response is required, the averments are denied pursuant to Pa.R.Civ.P 1029(e). COUNTI PLAINTIFFS, MAURA A. AND BRIAN C. FRY V.S. DEFENDANT, PENSKE LOGISTICS LLC NEGLIGENCE 22. Paragraphs 1 through 21 of Defendant's Answer are incorporated herein by reference. 21-30. Paragraphs 23 through 30 are directed to a defendant other than Exel, and, therefore, no response is required. To the extent that a response is required, the averments of paragraphs 23 through 30 are denied pursuant to Pa.R.Civ.P. 1029(e). WHEREFORE, Defendant, Exel, Inc., respectfully requests this Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant Exel and against Plaintiffs and award Defendant Exel its cost of suit. COUNT II PLAINTIFFS, MAURA A. AND BRIAN C. FRY vs. DEFENDANT, LIT INDUSTRIAL LIMITED PARTNERSHIP NEGLIGENCE 31. Paragraphs 1 through 30 of Defendant's Answer are incorporated herein by reference. -3- 32.-39. Paragraphs 32 through 39 are directed to a defendant other than Exel, and, therefore, no response is required. To the extent that a response is required, the averments of paragraphs 32 through 39 are denied pursuant to Pa.R.Civ.P. 1029(e). WHEREFORE, Defendant, Exel, Inc., respectfully requests this Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant Exel and against Plaintiffs and award Defendant Excel its cost of suit. COUNT III PLAINTIFFS, MAURA A. AND BRIAN C. FRY vs. DEFENDANT, EXEL, INC. NEGLIGENCE 40. Paragraphs 1 through 39 of Defendant's Answer are incorporated herein by reference. 41.-48. Paragraphs 41 through 48 are denied pursuant to Pa.R.Civ.P. 1029(e). WHEREFORE, Defendant, Exel, Inc., respectfully requests this Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant Exel and against Plaintiffs and award Defendant Exel its cost of suit. COUNT IV PLAINTIFFS, MAURA A. AND BRIAN C. FRY vs. DEFENDANT, WHIRLPOOL CORPORATION NEGLIGENCE 49. Paragraphs 1 through 48 of Defendant's Answer are incorporated herein by reference. 50.-57. Paragraphs 50 through 57 are directed to a defendant other than Exel, and, therefore, no response is required. To the extent that a response is required, the averments of paragraphs 50 through 57 are denied pursuant to Pa.R.Civ.P. 1029(e). -4- WHEREFORE, Defendant, Exel, Inc., respectfully requests this Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant Exel and against Plaintiffs and award Defendant Exel its cost of suit. COUNT V PLAINTIFF, MAURA A. FRY vs. DEFENDANTS, PENSKE LOGISTICS LLC, LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC., AND WHIRLPOOL CORPORATION LOSS OF CONSORTIUM 58. Paragraphs 1 through 57 of Defendant's Answer are incorporated herein by reference. 59.-60. Paragraphs 59 and 60 are denied pursuant to Pa.R.Civ.P. 1029(e). WHEREFORE, Defendant, Exel, Inc., respectfully requests this Court dismiss Plaintiffs' Complaint and enter judgment in favor of Defendant Exel and against Plaintiffs and award Defendant Exel its cost of suit. NEW MATTER 61. Paragraphs 1 through 60 of Defendant's Answer are incorporated herein by reference. 62. Plaintiff Brian C. Fry has failed to state a claim against Exel for negligence upon which relief can be granted. 63. Plaintiff Maura A. Fry has failed to state a claim against Exel for loss of consortium upon which relief can be granted. 64. Plaintiffs' claims may be barred by the applicable statute of limitations. 65. Exel did not breach any duty owed to Plaintiffs. 66. The alleged actions or failures to act of Exel were not the direct and proximate cause of Plaintiffs' alleged injuries. -5- 67. At all times relevant to the allegations in Plaintiffs' Complaint, Exel exercised reasonable care with respect to the condition of the property located at 6 Logistics Drive, Carlisle, Pennsylvania 17013. 65. Plaintiff Brian C. Fry's injuries, which are otherwise denied, were caused by his own carelessness or negligence in that he: (a) failed to maintain a proper lookout for his own safety; (b) failed to pay proper attention; (c) failed to observe the area in which he was standing and walking; and (d) deviated from the area where he was authorized to be. 66. The negligence of the Plaintiff Brian C. Fry was the sole and proximate cause of the Plaintiffs alleged injuries, said injuries being denied, and his negligence exceeded any negligence on the part of Exel, any negligence by Exel being specifically denied. In the alternative, if it is determined that Plaintiff Brian C. Fry was negligent, but that his negligence did not exceed that of Exel, the same being specifically denied, then any award of damages must be reduced by the proportionate share of Plaintiffs comparative negligence. 67. Plaintiff Maura A. Fry's alleged loss of consortium may have been caused by Brian C. Fry's pre-existing medical conditions and/or the progression of any such pre- existing condition for which Exel has no responsibility or for which Exel is entitled to a reduction in damages. WHEREFORE, Defendant, Exel, Inc., respectfully requests that this Court dismiss Plaintiffs' Complaint, enter judgment in favor of Defendant Exel, and against Plaintiffs, and award Defendant Exel its costs of suit. -6- CROSS-CLAIM PURSUANT TO Pa.R.C.P. 1031.1 DEFENDANT EXEL, INC. v. PENSKE LOGISTICS, LLC 68. Paragraphs 1 through 67 of Defendant's Answer are incorporated herein by reference. 69. To the extent that the averments contained in Plaintiffs' Complaint apply to or are directed at Defendant Penske Logistics, LLC ("Penske") such averments are incorporated herein by reference as though fully set forth. 70. The liability of Cross-Claim Defendant Penske exceeds any alleged liability of Exel. The liability of Exel is secondary to that of Cross-Claim Defendant Penske. 71. Cross-Claim Defendant Penske is solely liable to Plaintiffs, or, in the alternative, in the event that judgment is entered against Exel, Cross-Claim Defendant Penske is liable over to Exel in indemnity or contribution. WHEREFORE, Defendant Exel, Inc. respectfully requests that, in the event that any judgment is entered in favor of Plaintiffs, such judgment be entered solely against Penske Logistics, LLC, or, in the alternative, if judgment is entered against Exel, Inc., then in such event, Cross-Claim Defendant Penske shall be held liable over to Exel by way of indemnity or contribution, together with costs of suit. CROSS-CLAIM PURSUANT TO Pa.R.C.P. 1031.1 DEFENDANT EXEL, INC. v. WHIRLPOOL CORPORATION 72. Paragraphs 1 through 71 of Defendant's Answer are incorporated herein by reference. 73. To the extent that the averments contained in Plaintiffs' Complaint apply to or are directed at Defendant Whirlpool Corporation ("Whirlpool") such averments are incorporated herein by reference as though fully set forth. 74. The liability of Cross-Claim Defendant Whirlpool exceeds any alleged liability of Exel. The liability of Exel is secondary to that of Cross-Claim Defendant Whirlpool. -7- 75. Cross-Claim Defendant Whirlpool is solely liable to Plaintiffs, or, in the alternative, in the event that judgment is entered against Exel, Cross-Claim Defendant Whirlpool is liable over to Exel in indemnity or contribution. WHEREFORE, Defendant Exel, Inc. respectfully requests that, in the event that any judgment is entered in favor of Plaintiffs, such judgment be entered solely against Whirlpool Corporation, or, in the alternative, if judgment is entered against Exel, Inc., then in such event, Cross-Claim Defendant Whirlpool shall be held liable over to Exel by way of indemnity or contribution, together with costs of suit. McNEES WALLACE & NURICK LLC By Curtis N. ambaugh PA I.D. No. 80565 Tucker R. Hull PA I.D. No. 306426 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Dated: September 30, 2010 Attorneys for Defendant Exel, Inc. -8- VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that all statements are made subject to the penalties of 18 Pa C.S. 4904, relating unsworn falsification to authorities. This verification is being made by counsel for Defendant because their verification cannot be obtained in the time required for the service of this document. The sources of the information and beliefs set forth in the foregoing Answer with New Matter are documents obtained from a multitude of sources and other sources which constitute attorney work product which are otherwise privileged. urtis tambaugh Attorney for Defendant, Exel Inc. Date: September .3:), 2010 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Nicholas A. Veronis, Esq. HAGELGANS & VERONIS 223 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs Christopher M. Reeser, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Penske Logistics William D. Kennedy, Esq. WHITE & WILLIAMS 1235 West Lakes Drive, Suite 310 Berwin, PA 19312-2416 Attorney for Defendant Whirlpool Curtis N. Stambaugh Dated: September 1>0, 2010 Curtis N. Stambaugh PA I.D. No. 80565 Tucker R. Hull I.D. No. 306426 McNees Wallace &Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 ~ I'_~D~~FFtCE 0~' T~-~~ F°„~?~H~#~QTAo~`~ 21J rC i °~ Fib 3~ a t t~L~~pr~ ~R! I~7~~rr~t~i.1~~T ~~ Attorneys for Defendant MAURA A. and BRIAN C. FRY, Plaintiffs v. PENSKE LOGISTICS LLC, LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. CI-10-4874 JURY TRIAL DEMANDED ANSWER TO NEW MATTER CROSS-CLAIM OF DEFENDANT PENSKE LOGISTICS, LLC NOW COMES Defendant, Exel, Inc. ("Exel"), by and through its attorneys McNees Wallace &Nurick LLC, and Answers the New Matter Cross-Claim of Defendant Penske Logistics, LLC, in the above-captioned action as follows: 68. Paragraphs 1 through 75 of Defendant Exel, Inc.'s, Answer with New Matter and Cross-Claims are incorporated herein by reference. 69. Denied. This paragraph states a legal conclusion to which no response is required. WHEREFORE, Defendant Exel, Inc., demands that judgment be entered in its favor and against Defendant Penske Logistics, LLC, and that Exel be awarded the costs of suit. McNEES WALLACE & NURICK LLC By ~ ~ ~ L~ Curtis N. Stambaugh PA I.D. No. 80565 Tucker R. Hull PA I.D. No. 306426 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Dated: October 4, 2010 Attorneys for Defendant Exel, Inc. VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that all statements are made subject to the penalties of 18 Pa C.S. 4904, relating unsworn falsification to authorities. This verification is being made by counsel for Defendant because their verification cannot be obtained in the time required for the service of this document. The sources of the information and beliefs set forth in the foregoing Answer to New Matter Cross-Claim are documents obtained from a multitude of sources and other sources which constitute attorney work product which are otherwise privileged. ~ ~~~ Tucker R. Hull Attorney for Defendant, Exel Inc. Date: October 4, 2010 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Nicholas A. Veronis, Esq. HAGELGANS & VERONIS 223 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs Christopher M. Reeser, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Penske Logistics William D. Kennedy, Esq. WHITE & WILLIAMS 1235 West Lakes Drive, Suite 310 Berwin, PA 19312-2416 Attorney for Defendant Whirlpool --~.~ ~ C~~ Tucker R. Hull Dated: October 4, 2010 LAVIN, 0' NEIL, RICCI, CEDRONE & DISIPIO By: Wayne A. Graver, Esquire , Identification No.: 28245 .3 190 N. Independence Mall West ?, z 6& Suite 500 Race Streets P E, I INSY l_k`A N 6A Philadelphia, PA 19106 Attorney for Defendant, (215) 627-0303 Whirlpool Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MAURA A. and BRIAN C. FRY, Plaintiffs Civil Action No.: 10-4874 Civil Term VS. PENSKE LOGISTICS, LLC, and LIT INDUSTRIAL LIMITED PARTNERSHIP, and EXEL, INC. and WHIRLPOOL CORPORATION, Defendants. JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the attached original Verification of Michael L. Metzger, Esquire for the Attorney Verification previously filed in support of the Answer with New Matter to Plaintiff's Complaint on behalf of Whirlpool Corporation. Respectfully submitted, LAVIN, O'NE , RICCI, N & DiSIPIO BY: AtIlw-1 C Wayne #. Graver, E wire Attorneys for Defe dant, Whirlpool Corporation PA Attorney ID No.: 28245 190 N. Independence Mall West, Suite 500 Philadelphia, PA 19106 Dated: October 7, 2010 (215) 351-7912 VERIFICATION I, Michael L. Metzger, Senior Counsel, am authorized to execute this verification on behalf of Whirlpool Corporation; I have read the foregoing "Answer with New Matter and Crossclaim to Plaintiffs' Complaint" and the facts therein set forth are true and correct to the best of my knowledge, information and belief. I understand that the statements made herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unworn falsification to authorities. Michael L. Metzger, Esq. Dated: September 15, 2010 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of October, 2010, a true and correct copy of Praecipe to Substitute Verification was forwarded to counsel identified below, via First Class U.S. Mail, postage pre-paid: Nicholas A. Veronis, Esquire William D. Kennedy, Esquire Hagelgans & Veronis White & Williams, LP 233 N. Duke Street One Westlakes Lancaster, PA 17602 1235 Westlakes Boulevard, Suite 310 Attorney for Plaintiffs Berwyn, Pa 19312 Attorney for Defendant, LIT Industrial Limited Partnership, Christopher M. Reeser, Esquire Curtis N. Stambaugh, Esquire Marshall, Dennehey, Warner, Coleman McNees, Wallace & Nurick & Goggin 100 Pine Street 4200 Crums Mill Road, Suite B P.O. Box 1166 Harrisburg, PA 17112 Harrisburg, PA 17108-1166 Attorney for Defendant, Attorney for Exel, Inc.. Penske Logistics, LLC LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO BY: llltlalu? I ', ayne . Graver, E uire Atto s for Defe ant, Whirlpool Corporation PA Attorney ID No.: 28245 190 N. Independence Mall West Suite 500 6'h & Race Street Philadelphia, PA 19106 (215) 351-7912 2 L F 13-=0+ i 'l HAGELGANS & VERONIS Ci r s 1 r? € i'J , Nicholas A. Veronis, Esquire Identification No.: 46523 Z010 G ' 12 223 N. Duke Street L; et 1 D Cfl?i,, Lancaster, PA 17602 ( _ 1 t ,,?y 1i,. Telephone: (717) 295-7009 Attorney for`?tiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MAURA A. and . BRIAN C. FRY, . Plaintiffs VS. Civil Action No.: 10-4874 PENSKE LOGISTICS LLC, and LIT INDUSTRIAL LIMITED PARTNERSHIP JURY TRIAL DEMANDED and . EXEL, INC. and . WHIRLPOOL CORPORATION, Defendants PLAINTIFFS, MAURA A. and BRIAN C. FRY'S, REPLY TO NEW MATTER OF DEFENDANT, EXEL, INC. 62. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, Plaintiffs do state a cause of action against Defendant Exel as set forth in Plaintiffs' Complaint. 63. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, Plaintiff do state a cause of action against Defendant Exel as set forth in Plaintiffs' Complaint. 64. Denied as a conclusion of law to which no responsive pleading is required. 65. Denied as a conclusion of law to which no responsive pleading is required. 66. Denied as a conclusion of law to which no responsive pleading is required. 67. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, it is specifically denied that Defendant Exel exercised reasonable care with regard to the condition of the property located at 6 Logistics Drive; therefore, strict proof of said allegation is demanded at time of trial. 65 (sic). Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, it is specifically denied that Plaintiff, Brian C. Fry, was careless or negligent in the manner set forth; therefore, strict proof of said allegation is demanded at time of trial. 66 (sic). Denied as a conclusion of law to which no responsive pleading is required. It is specifically denied that Plaintiff, Brian C. Fry, was negligent in any manner or that his negligence exceeded that of Defendant Exel; therefore, strict proof of said allegation is demanded at the time of trial. 67 (sic). Denied as a conclusion of law to which no responsive pleading is required. WHEREFORE, Plantiffs, Brian C. and Maura A. Fry, demand judgment in their favor and against Defendant, Exel, Inc., as set forth in Plaintiffs' Complaint. 68 - 75. Said paragraphs are directed to other Defendants in this case and Plaintiffs demand judgment in their favor and against said Defendants as set forth in Plaintiffs' Complaint. WHEREFORE, Plaintiffs, Brian C. and Maura A. Fry, demand judgment in their favor and against Defendants, Penske Logistics, LLC, LIT Industrial Limited Partnership, Exel, Inc., and Whirlpool Corporation as set forth in Plaintiffs' Complaint. DATED: 10--7-10 HAGELGANS & VERONIS BY: Nic of A. Veronis, Esquire Attorney for Plaintiffs Attorney I.D. No.: 46523 223 North Duke Street Lancaster, PA 17602 Telephone (717) 295-7009 Facsimile: (717) 396-9746 VERIFICATION I, NICHOLAS A. VERONIS, attorney for Plaintiffs, do hereby verify that the averments made in Plaintiffs, Maura A. and Brian C. Fry's, Reply To New Matter Of Defendant, Exel, Inc., are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: /0-1-10 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing Plaintiffs, Maura A. and Brian C. Fry's, Reply To New Matter Of Defendant, Exel, Inc. was served by mailing, first class mail, postage prepaid, to the following: William D. Kennedy, Esquire White & Williams 1235 Westlakes Drive, Suite 310 Berwin, PA 19312 Christopher M. Reeser, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Curtis N. Stambaugh, Esquire McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Wayne A. Graver, Esquire Labin, O'Neil, Ricci, Cedrone & DiSipio Suite 500, 190 North Independence Mall West 6'b and Race Streets Philadelphia, PA 19106 HAGELGANS & VERONIS By: Nich6la? A. Veronis, Esquire Attorney for Plaintiffs I.D. No.:46523 223 North Duke Street Lancaster, PA 17602 Telephone: (717) 295-7009 Facsimile: (717) 396-9746 Date: 1011-10 fILEO-OF~lC~ ~?F THE F'ROTH~I~OTAR'~ 201 D OCT ! S A~ ! 1 ~ 22 ~~P~BERL~ND Ct3UNT s' Pr~~~SY~.~~l'~~~1~~ OS/649248.v1 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN $y: Christopher M. Reeser, Esquire ID No. 73632 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 07040-01045 Attorney for Defendant Penske Logistics LLC MAURA A. and BRIAN C. FRY Plaintiffs vs. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION Defendants . COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No. CV-10-4874 CIVIL ACTION -LAW . JURY TRIAL DEMANDED DEFENDANT PENSKE LOGISTICS. LLC'S ANSWER TO EXEL, INC.'S CROSSCLAIM PURSUANT TO Pa.R.C.P.1031.1 68. No responsive pleading required. 69-71. The allegations in Pazagraphs 69-71 aze conclusions of law to which no responsive pleading is required. WHEREFORE, Defendant Penske Logistics, LLC requests judgment be entered in its favor. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN IN By: Christop er M. Reeser, Esquire Attorney for Defendant Penske Logistics, LLC ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Dated: October 14, 2010 ~ ~ MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID No. 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 07040-01045 Attorney for Defendant Penske Logistics LLC FILED-01' F ICE ti~ ~iiE ~RCTIi~t~gTAr~`~ ~~~ao~~ ~s a~r~: ~ ~~,,P~iBERL~i'dQ COUPS T ~' t~'EP1PiS1'!_~!r~P31t" MAURA A. and BRIAN C. FRY Plaintiffs vs. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No. CV-10-48'74 CIVIL ACTION -LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on October 14, 2010, I served a copy of Defendant Penske Logistics, LLC's Answer to Defendant Exel's Crossclaim via First Class United States mail, postage prepaid as follows: Nicholas A. Veronis, Esquire Hagelgans &Veronis 233 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs William D. Kennedy, Esquire White and Williams, LP One Westlakes 1235 Westlakes Boulevard, Suite 310 Berwyn, PA 19312 Attorney for Defendant LIT Industrial t Curtis N. Stambaugh, Esquire McNees Wallace & Nurick 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant Exel, Inc. Wayne A. Graver, Esquire Lavin O`Neil Ricci Cederone & DiSipio 190 North Independence Mall West Suite 500 6th and Race Streets Philadelphia, PA 19106 Attorney for Defendant Whirlpool Corporation Christopher M. Reeser Y~ - .,.4:t.:.. FIi:FD•t~~=~'ICF LF ~lii r~~ ~J T;~O,~dC TART C~lO OCT 21 t'~i Z~ 3~ C11~^I~I;L~a~rD COU~'~~Y ~~r°~E~S'~°~YA~dIA Curtis N. Stambaugh PA I.D. No. 80565 Tucker R. Huli 1.D. No. 306426 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant MAURA A. and BRIAN C. FRY, Plaintiffs v. PENSKE LOGISTICS LLC, LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. CI-10-4874 JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the enclosed verification of Jennifer Slagle, Property Manager and authorized representative of Defendant Exel, Inc., in the above-captioned case, for the attorney verification that is attached to Exel's Answer to New Matter Cross-Claim of Defendant Penske Logistics, LLC. Thank you for your assistance with this request. McNEES WALLACE & NURICK LLC By urns N. Stambaug PA I.D. No. 80565 Tucker R. Hull PA I.D. No. 306426 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Dated: October 20, 2010 Attorneys for Defendant Exel, Inc. VERIFICATION I, Jennifer Slagle, hereby verify that I am a Property Manager for Exel, Inc., that as such I am authorized to execute this verification on its behalf. I further verify that the statements made in the Answer to Cross-Claim are true and correct to the best of my knowledge, information and belief. I understand that all statements are made subject to the penalties of 18 Pa C.S. 4904, relating unsworn falsification to authorities. ennifer Slagle ~~ Date: October ~, 2010 .~- , CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Nicholas A. Veronis, Esq. HAGELGANS & VERONIS 223 N. Duke Street Lancaster, PA 17602 Attorney for Plaints Christopher M. Reeser, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Penske Logistics William D. Kennedy, Esq. WHITE & WILLIAMS 1235 West Lakes Drive, Suite 310 Berwin, PA 19312-2416 Attorney for Defendant Whirlpool ~~ ~~. ~ Lr~~Xit" Tucker R. Hull Dated: October 20, 2010 .s ., f t ~~ED - ~? ~'t~~tt a~I~,~C,,-~~E 1~~ ~.'~ ~aJ~ a~9`iJ d i`ilVl'9UT~11~~ ,.~~~.~~~~~ Ai~~ cc~~~~r°f ~.. ~~~.r Curtis N. Stambaugh PA I.D. No. 80565 Tucker R. Hull I.D. No. 306426 McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant MAURA A. and BRIAN C. FRY, Plaintiffs v. PENSKE LOGISTICS LLC, LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. CI-10-4874 JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the enclosed verification of Jennifer Slagle, Property Manager and authorized representative of Defendant Exel, Inc., in the above-captioned case, for the attorney verification that is attached to Exel's Answer with New Matter and Cross- Claim. Thank you for your assistance with this request. McNEES WALLACE & NURICK LLC B ~ - ,~ ~' ; y ~i~-~, Curtis N. Stambaugh PA I.D. No. 80565 Tucker R. Hull PA I.D. No. 306426 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Dated: October 20, 2010 Attorneys for Defendant Exel, Inc. VERIFICATION I, Jennifer Slagle, hereby verify that I am a Property Manager for Exel, Inc., that as such 1 am authorized to execute this verification on its behalf. I further verify that the statements made in the Answer with New Matter and New Matter Cross-Claim are true and correct to the best of my knowledge, information and belief. I understand that all statements are made subject to the penalties of 18 Pa C.S. 4904, relating unsworn falsification to authorities. ennifer Slagle Date: October / ~, 2010 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Nicholas A. Veronis, Esq. HAGELGANS & VERONIS 223 N. Duke Street Lancaster, PA 17602 Attorney for Plaints Christopher M. Reeser, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Penske Logistics William D. Kennedy, Esq. WHITE & WILLIAMS 1235 West Lakes Drive, Suite 310 Berwin, PA 19312-2416 Attorney for Defendant Whirlpool ~ G~~~ Tucker R. Hull Dated: October 20, 2010 !a A. 01 FILM-E?F'FICE 1_'F THE PROTHONOT ;t,yl MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire 2910 DEC 10 PM 1: ID No. 73632 CUMBERLAND COUNT)' 4200 Crums Mill Road, Suite B PENNSYLVANIA Harrisburg, PA 17112 717-651-3509 Our File No. 07040-01045 Attorney for Defendant Penske Logistics LLC MAURA A. and COURT OF COMMON PLEAS BRIAN C. FRY CUMBERLAND COUNTY PENNSYLVANIA Plaintiffs No. CV-10-4874 vs. : PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED CIVIL ACTION - LAW PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION Defendants JURY TRIAL DEMANDED STIPULATION 1. Plaintiffs filed a lawsuit against Penske Truck Leasing Co., LP and LIT Industrial, LTD on December 7, 2009 to No. CV-09-8418 in the Court of Common Pleas of Cumberland County, Pennsylvania. 2. Written discovery was exchanged in the case of Fry v. Penske and LIT and plaintiffs took the depositions of four Penske employees. 3. On July 26, 2010, plaintiffs filed a new action naming as defendants Penske Logistics, LLC, LIT Industrial Limited Partnership, Exel, Inc. and Whirlpool Corporation to Docket No. CV-10-4874 in the Court of Common Pleas of Cumberland County, Pennsylvania. { '..- w• 4. The parties hereby stipulate and agree that all discovery exchanged and all deposition testimony taken in the action filed to No. CV-09-8418 may be used in the case filed to No. CV-10-4874 as if the discovery was conducted in the case filed to No. CV-10-4874. 5. Penske Logistics, LLC stipulates and agrees that its employees who were deposed in the case filed to No. CV-09-8418 may be redeposed in the case filed to No. CV-10-4874, but only to the extent that the areas of inquiry do not include areas that have already been covered in the employee's previous depositions. 6. Upon execution of this Stipulation by all counsel, plaintiffs agree that they will discontinue the lawsuit filed to Docket No. CV- 09-8418. 7. This Stipulation may be executed by the parties in separate counterparts, and may be delivered by electronic mail, facsimile, or by regular U.S. Mail, each of which when so executed and delivered shall be deemed and original and all of which counterparts taken together shall constitute but one and the same instrument. Hagelg s & Ver nis By: Nic of A. Veronis, Esquire 233 Ns uke Street Lancaster, PA 17602 Attorney for Plaintiffs ?s McNees Wallace & Nurick By: 4- ??? urtis . S ambau h, Esquire 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant Exel, Inc. 10/22/2010 1.0:33:4:6 AM flingk@whiteandwilliams.com WhiteandWilliamsLLP Page 6 White and Williams, LLP N Maw, B c ~? William D. Kennedy, Esqurj V One Westlakes 1235 Westlakes Boulevard, Suite 310 Berwyn, PA 19312 Attorney for Defendant LIT Industrial Limited Partnership 6858637v.1 Lavin OWeil Ricci Cedrone & DiSipio By: Wayne Graver, Esq 190 Ndfth lndepend Mall West Suite 500 6th and Race Streets Philadelphia, PA 19106 Attorney for Defendant Whirlpool Corporation V ` • • MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN J By. Christopher M. Reeser, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Penske Logistics To: Plaintiffs and Co-Defendants You are hereby notified to file a written response to the enclosed Answer with New Matter and New Matter Crossclaims within twenty (20) days from service hereof or a judgment may be entered against you. Attorney for Defendant IT Industrial Limited artnership WHITE AND WILLIAMS LLP Attorneys for Defendant, BY: William D. Kennedy LIT INDUSTRIAL LIMITED Identification No(s). 53023 PARTNERSHIP 1650 Market Street c o --nn One Liberty Place; Suite 1800 °U) - _ ` rn`t Philadelphia, PA 19103-7395 ; r, =..- , - - x-- 215.864.6816 r - ?n kennedyw@whiteandwilliams.com o0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COU1 , -- ) n PENNSYLVANIA =i w rrf 2> CIVIL ACTION - LAW co < MAURA A. and BRIAN C. FRY CIVIL ACTION NO. CI-10-4874 Plaintiffs, V. PENSKE TRUCK LEASING LLC, LIT INDUSTRIAL LIMITED PARTNERSHIP, EXCEL, : INC. and WHIRLPOOL CORPORATION Defendants. ANSWER WITH NEW MATTER AND NEW MATTER CROSSCLAIMS OF DEFENDANT, LIT INDUSTRIAL LIMITED PARTNERSHIP TO PLAINTIFFS' COMPLAINT Defendant, LIT Industrial Limited Partnership hereby responds to Plaintiffs' Complaint and avers as follows: 1. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and strict proof thereof is demanded at trial. 7087511v.I 2. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and strict proof thereof is demanded at trial. 3. Denied as stated. It is admitted that Defendant, LIT Industrial Limited Partnership is a Delaware limited partnership with a principal place of business outside of the Commonwealth of Pennsylvania. The remaining averments of paragraph 3 of Plaintiffs' Complaint are denied. 4. This paragraph is directed to a defendant other than LIT Industrial Limited Partnership and, therefore, no response is required; to the extent that a response is required these averments are denied. 5. This paragraph is directed to a defendant other than LIT Industrial Limited Partnership and, therefore, no response is required; to the extent that a response is required these averments are denied.. 6. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and strict proof thereof is demanded at trial. 7. Admitted. 8. Admitted. The lease speaks for itself. 9. Denied as stated. The lease speaks for itself. Moreover, the contract has to be read in the context of all of the contracts pertaining to the grounds. 10. This paragraph is directed to a defendant other than LIT Industrial Limited Partnership and therefore, no response is required. Moreover, the terms of the contract are in writing and speak for themselves. -2- 7087511 v.1 11. This paragraph is directed to a defendant other than LIT Industrial Limited Partnership and therefore, no response is required. Moreover, the terms of the contract are in writing and speak for themselves. 12. Denied. To the contrary, at no time. was the property under the supervision, control or possession of Defendant, LIT Industrial Limited Partnership. At all times, LIT Industrial Limited Partnership was a landlord out of possession with respect to the property and, specifically, the area described in Plaintiffs' Complaint. 13. Denied as stated. The lease speaks for itself. Moreover, the contract has to be read in the context of all of the contracts pertaining to the grounds. 14. Denied. Part of this paragraph contains a conclusion of law to which no response is required. At no time did LIT Industrial Limited Partnership have the opportunity or duty to possess, supervise, maintain, control, repair or inspect the property, nor to ensure that it was safe. At all times, LIT Industrial Limited Partnership was a landlord out of possession with respect to the property and, specifically, the area described in Plaintiffs" Complaint. 15. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and strict proof thereof is demanded at trial. 16. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and strict proof thereof is demanded at trial. 17. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and -3- 7087511 v.1 strict proof thereof is demanded at trial. Moreover, Plaintiffs' characterization of the condition is denied and strict proof thereof is demanded at trial. 18. Denied. Plaintiffs' characterization of the condition is denied. After reasonable investigation, Answering Defendant lacks sufficient information to form a belief as to the extent of Plaintiffs' injuries and the same are therefore denied. 19. Denied. Part of this paragraph contains a conclusion of law to which no response is required. Moreover, Plaintiffs' characterization of the condition is denied and strict proof thereof is demanded at trial. At no time did LIT Industrial Limited Partnership have the opportunity or duty to possess, supervise, maintain, control, repair or inspect the property, nor to ensure that it was safe. At al l times, LIT Industrial Limited Partnership was a landlord out of possession with respect to the property and, specifically, the area described in Plaintiffs" Complaint. 20. Denied. The allegations in this paragraph are legal conclusions and therefore require no response by Answering Defendant. 21. Denied. The allegations in this paragraph are legal conclusions and therefore require no response by Answering Defendant. Moreover, Denied. All allegations of negligence, carelessness, causation and injury as alleged herein are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). COUNT I Plaintiffs v. Penske 22. Answering Defendant hereby incorporates by reference its responses to the foregoing paragraphs as if repeated herein fully at length. 23-30. These paragraphs are directed to a defendant other than LIT Industrial Limited Partnership and, therefore, no response is required; to the extent that a response is required these averments are denied. -4- 7087511 v.1 WHEREFORE, Defendant LIT Industrial Limited Partnership, denies that it is liable to Plaintiffs for any sum, and demands judgment in its favor and against Plaintiffs together with reasonable attorneys fees and the costs of defending this action. COUNT II Plaintiffs v. LIT Industrial Limited Partnership 31. Answering Defendant hereby incorporates by reference its responses to the foregoing paragraphs as if repeated herein fully at length 32. Denied. All allegations of negligence, carelessness, causation and injury as alleged herein are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). Moreover, Plaintiffs' characterization of the condition is denied and strict proof thereof is demanded at trial. At no time did LIT Industrial Limited Partnership have the opportunity or duty to possess, supervise, maintain, control, repair or inspect the property, nor to ensure that it was safe. At all times, LIT Industrial Limited Partnership was a landlord out of possession with respect to the property and, specifically, the area described in Plaintiffs" Complaint. 33. Denied. All allegations of negligence, carelessness, causation and injury as alleged herein are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). See also, New Matter. 34. The allegations in this paragraph are legal conclusions and therefore require no response by Answering Defendant. 35. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and strict proof thereof is demanded at trial. Moreover, all allegations of negligence, carelessness, causation and injury as alleged herein are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). See also New Matter. -5- 7087511 v.1 36-39. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and strict proof thereof is demanded at trial. Moreover, all allegations of negligence, carelessness, causation and injury as alleged herein are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). Moreover, the allegations in these paragraphs are legal conclusions and therefore require no response by Answering Defendant. WHEREFORE, Defendant LIT Industrial Limited Partnership, denies that it is liable to Plaintiffs for any sum, and demands judgment in its favor and against Plaintiffs together with reasonable attorneys fees and the costs of defending this action. COUNT III Plaintiffs v. Exel 40. Answering Defendant hereby incorporates by reference its responses to the foregoing paragraphs as if repeated herein fully at length. 41. Denied. All allegations of negligence, carelessness, causation and injury as alleged herein are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). Moreover, Plaintiffs' characterization of the condition is denied and strict proof thereof is demanded at trial. At no time did LIT Industrial Limited Partnership have the opportunity or duty to possess, supervise, maintain, control, repair or inspect the property, nor to ensure that it was safe. At all times, LIT Industrial Limited Partnership was a landlord out of possession with respect to the property and, specifically, the area described in Plaintiffs" Complaint. 42. Denied. All allegations of negligence, carelessness, causation and injury as alleged herein are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). See also, New Matter. 43. The allegations in this paragraph are legal conclusions and therefore require no response by Answering Defendant. -6- 7087511 v. I 44. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and strict proof thereof is demanded at trial. Moreover, all allegations of negligence, carelessness, causation and injury as alleged herein are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). See also New Matter. 45-48. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and strict proof thereof is demanded at trial. Moreover, all allegations of negligence, carelessness, causation and injury as alleged herein are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). Moreover, the allegations in these paragraphs are legal conclusions and therefore require no response by Answering Defendant. WHEREFORE, Defendant LIT Industrial Limited Partnership, denies that it is liable to Plaintiffs for any sum, and demands judgment in its favor and against Plaintiffs together with reasonable attorneys fees and the costs of defending this action. COUNT IV Plaintiffs v. Whirlpool 49. Answering Defendant hereby incorporates by reference its responses to the foregoing paragraphs as if repeated herein full), at length. 50-57. These paragraphs are directed to a defendant other than LIT Industrial Limited Partnership and, therefore, no response is required; to the extent that a response is required these averments are denied. WHEREFORE, Defendant LIT Industrial Limited Partnership, denies that it is liable to Plaintiffs for any sum, and demands judgment in its favor and against Plaintiffs together with reasonable attorneys fees and the costs of defending this action. -7- 7087511 v. I COUNT V Plaintiff Maura Fry v. All Defendants 58. Answering Defendant hereby incorporates by reference its responses to the foregoing paragraphs as if repeated herein fully at length. 59. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and strict proof thereof is demanded at trial. 60. Denied. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of this averment, which is therefore being denied and strict proof thereof is demanded at trial. Moreover, denied, all allegations of negligence, carelessness, causation and injury as alleged herein are denied pursuant to Pennsylvania Rule of Civil Procedure 1029(e). WHEREFORE, Defendant LIT Industrial Limited Partnership, denies that it is liable to Plaintiffs for any sum, and demands judgment in its favor and against Plaintiffs together with reasonable attorneys fees and the costs of defending this action. NEW MATTER 61. If Plaintiff sustained injuries as alleged, then it is averred that said injuries were caused by persons, entities, and/or conditions over whom/which Defendant had no control and no right to control and for whom/which Defendants had no responsibility. 62. Plaintiffs claims might be barred by the applicable statute of limitations. 63. Answering Defendant(s) raise all applicable defenses under the Comparative Negligence Statue. It is specifically averred that Plaintiff, Brian Fry, was negligent and that this negligence constitutes a bar to recovery. In the alternative, it is averred that any award entered against Defendant(s) should be reduced by that amount of negligence apportioned to Plaintiff(s). -8- 70875 I 1 v. I 64. Answering Defendant was not negligent, reckless and careless with respect to any conduct regarding the Plaintiff. 65. Plaintiff has failed to state a cause of action upon which relief can be granted. 66. Plaintiff may have failed to mitigate the damages alleged, as required by law. NEW MATTER CROSSCLAIM AGAINST DEFENDANT WHIRLPOOL CORPORATION PURSUANT TO PA.R.C.P. 1031.1 67. Answering Defendant hereby incorporates by reference its responses to the foregoing paragraphs as if repeated herein fully at length. 68. To the extent that the averments contained in Plaintiffs' Complaint apply to or are directed to Defendant, Whirlpool Corporation, such averments are incorporated herein by reference as if frilly set forth at length. 69. The liability of Defendant, Whirlpool Corporation, exceeds any alleged liability of LIT Industrial Limited Partnership. 70. LIT Industrial Limited Partnership denies all liability to Plaintiffs or any other party in this case, but in the event that liability is found, it is averred that such liability is secondary and passive compared to the active and primary negligence of Defendant, Whirlpool Corporation. 71. Defendant, Whirlpool Corporation is solely liable to Plaintiffs or, in the alternative, Defendant Whirlpool Corporation is liable over to LIT Industrial Limited Partnership for common law indemnity, contractual indemnity pursuant to the contract attached to Plaintiffs' Complaint as Exhibit "A," or contribution. WHEREFORE, Defendant LIT Industrial Limited Partnership, denies that it is liable to Plaintiffs for any sum, and demands judgment in its favor and against Defendant, Whirlpool -9- 7087511 v. I Corporation for indemnity or contribution, together with reasonable attorneys fees and the costs of defending this action. NEW MATTER CROSSCLAIM AGAINST DEFENDANT PENSKE TRUCK LEASING LLC PURSUANT TO PA.R.C.P. 1031.1 72. Answering Defendant hereby incorporates by reference its responses to the foregoing paragraphs as if repeated herein fully at length. 73. To the extent that the averments contained in Plaintiffs' Complaint apply to or are directed to Defendant, Penske Truck Leasing LLC, such averments are incorporated herein by reference as if fully set forth at length. 74. The liability of Defendant, Penske Truck Leasing LLC, exceeds any alleged liability of LIT Industrial Limited Partnership. 75. LIT Industrial Limited Partnership denies all liability to Plaintiffs or any other party in this case, but in the event that liability is found, it is averred that such liability is secondary and passive compared to the active and primary negligence of Defendant, Penske Truck Leasing LLC. 76. Defendant, Penske Truck Leasing LLC is solely liable to Plaintiffs or, in the alternative, Defendant Penske Truck Leasing LLC is liable over to LIT Industrial Limited Partnership for common law indemnity or contribution. WHEREFORE, Defendant LIT Industrial Limited Partnership, denies that it is liable to Plaintiffs for any sum, and demands judgment in its favor and against Defendant, Penske Truck Leasing LLC for indemnity or contribution, together with reasonable attorneys fees and the costs of defending this action. -10- 7087511 v.1 WHITE AND WILLIAMS LLP BY: William D. KennKendant, Attorneys for De LIT INDUSTRIAL LIMITED PARTNERSHIP 7087511 v.1 -11- VERIFICATION I, William D. Kennedy, Esquire duly depose and state that I am attorney and representative of named defendant LIT Industrial Limited Partnership in the foregoing matter and as such, am authorized to make this Verification on its behalf. I have read the foregoing Answer with New Matter and New Matter Crossclaims to Plaintiffs' Complaint, and state that the facts contained therein are true and correct to the best of my knowledge, information and belief. I make these statements subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. W1 lam 4KKenn?, Esqu' Dated: January 13, 2011 Fry v. LIT Industrial Limited Partnership, et al. 70875 I 1 v.1 WHITE AND WILLIAMS LLP BY: William D. Kennedy Identification No(s). 53023 1650 Market Street One Liberty Place; Suite 1800 Philadelphia, PA 19103-7395 215.864.6816 kennedvwa,whiteandwilliams.com Attorneys for Defendant, LIT INDUSTRIAL LIMITED PARTNERSHIP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MAURA A. and BRIAN C. FRY Plaintiffs, V. PENSKE TRUCK LEASING LLC, LIT INDUSTRIAL LIMITED PARTNERSHIP, EXCEL, : INC. and WHIRLPOOL CORPORATION Defendants. CIVIL ACTION NO CERTIFICATE OF SERVICE C r-41 c O '?1 g CI-16a 7 4E =-n rTi K O -AO -n ....`_'_ ,ry _... c:) O -n xn ?= w CK) D I, William D. Kennedy, Esquire, hereby certify that on this 13 day of January, 2011, a true and correct copy of the Answer with New Matter and New Matter Crossclaims to Plaintiffs' Complaint on behalf of Defendant, LIT Industrial Limited Partnership was sent via First Class Mail to the following: Nicholas A. Veronis, Esquire Hagelgans & Veronis 223 North Duke St. Lancaster, PA 17602 Christopher M. Reeser, Esquire Marshall Dennehey Warner Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 7087511 v. I Wayne A. Graver, Esquire Lavin, O'Neil, Ricci, Cedrone & Disipio Suite 500 190 North Independence Mall West 6th & Race Streets Philadelphia, PA 19106 Curtis N. Stambaugh, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17109-1166 WHITE AND WILLIAMS LLP 70875 I 1 v. I BY: r, I.,,a i iam D. K edy Attorneys for Defendant, LIT INDUSTRIAL LIMITED PARTNERSHIP 2 FILED-OFFICE HAGELGANS & VERONIS OF THE PROTHONOTARY Nicholas A. Veronis, Esquire 201J,a . <'<a 13 Pi;, . 29 Identification No.: 46523 223 N. Duke Street C UM B E R L_ 'COUNTY PEtSYI ?!r !!{A Lancaster, PA 17602 Teleuhone: 67171295-7009 Attornev for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MAURA A. and BRIAN C. FRY, Plaintiffs VS. Civil Action No.: CI-10-4874 PENSKE TRUCK LEASING, LLC, and LIT INDUSTRIAL LIMITED PARTNERSHIP JURY TRIAL DEMANDED and EXEL, INC. and WHIRLPOOL CORPORATION, Defendants PLAINTIFFS' REPLY TO THE ANSWER AND NEW MATTER OF DEFENDANT. LIT INDUSTRIAL LIMITED PARTNERSHIP 61. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, Plaintiff's injuries and accident were caused by persons and entities identified in Plaintiffs' Complaint and it is believed and alleged that Defendant LIT, as owner of the property, had some control and responsibility for the accident as set forth in Plaintiffs' Complaint. 62. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, Plaintiffs' claims were filed within the applicable Statute of Limitations. 63. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, it is specifically denied that Plaintiff, Brian Fry, was negligent in any manner in causing the subject accident set forth in Plaintiffs' Complaint; therefore, strict proof of said allegation is demanded at the time of trial. 64. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, Defendant LIT was negligent, reckless, and careless as set forth in Plaintiffs' Complaint. 65. Denied as a conclusion of law to which no responsive pleading is required. 66. Denied as a conclusion of law to which no responsive pleading is required. To the extent a response is required, Plaintiffs have attempted to mitigate any damages sustained from this accident; therefore, strict proof of said allegation is demanded at the time of trial. 67 - 71. Said allegations are directed to Defendant Whirlpool Corporation; therefore, no response is required by Plaintiffs. To the extent a response is required, Plaintiffs assert the allegations against Defendant Whirlpool as set forth in Plaintiffs' Complaint. 72 - 76. Said allegations are directed to Defendant Penske; therefore, no response is required by Plaintiffs. To the extent a response is required, Plaintiffs assert the allegations against Defendant Penske as set forth in Plaintiffs' Complaint. WHEREFORE, Plaintiffs, Maura A. and Brian C. Fry, demand judgment against Defendant LIT Industrial Limited Partnership and the other Defendants named in this lawsuit as set forth in Plaintiffs' Complaint. HAGELGANS DATED: I, ( -1- / / BY: A. Veronis, Esquire for Plaintiffs Attorney I.D. No.: 46523 223 North Duke Street Lancaster, PA 17602 Telephone (717) 295-7009 Facsimile: (717) 396-9746 VERIFICATION I, NICHOLAS A. VERONIS, attorney for Plaintiffs, do hereby verify that the averments made in Plaintiffs, Maura A. and Brian C. Fry's, Reply To The Answer And New Matter Of Defendant, LIT Industrial Limited Partnership, are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Nichol A. Veroms Date: N `Y-// CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing Plaintiffs' Reply to the Answer and New Matter of Defendant, LIT Industrial Limited Partnership was served by mailing, first class mail, postage prepaid, to the following: Via Email: cstambaurh(a,mwn.com Curtis N. Stambaugh, Esquire McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Via Email: cmreeser(- ,mdwcz.com Christopher M. Reeser, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Via Email: kennedywAwhiteandwilliams.com William D. Kennedy, Esquire White & Williams 1235 West Lakes Drive, Suite 310 Berwin, PA 19312-2416 Via Email: wtzraver(iOavin-law.com Wayne A. Graver, Esquire Lavin, O'Neil, Ricci, Cedrone & DiSipio Suite 500, 190 North Independence Mall West 6t` and Race Streets Philadelphia, PA 19106 HAGEL ANS & VERONIS By: Ad, 411? NNith?as A. Veronis, Esquire Attorney for Plaintiffs I.D. No.:46523 223 North Duke Street Lancaster, PA 17602 Telephone: (717) 295-7009 Facsimile: (717) 396-9746 Date: /- 1 y'1 ( W FILED-OFFICE 2011, 16 CUP11C i i y P r o5/67sbaa.v 1 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID No. 73632 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 07040-01045 Attorney for Defendant Penske Logistics LLC MAURA A. and BRIAN C. FRY Plaintiffs VS. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No. CV-10-4874 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT PENSKE LOGISTICS. LLC'S ANSWER TO LIT INDUSTRIAL LIMITED PARTNERSHIP CROSSCLAIM 72. No responsive pleading required. 73. No responsive pleading required. 74-76. The allegations in Paragraphs 74, 75 and 76 are conclusions of law to which no responsive pleading is required. WHEREFORE, Defendant Penske Logistics, LLC requests judgment be entered in its favor. Respectfully submitted, MARSHALL DENNEHEY WARNER COLE GGIN By: Christop er M. Reeser, Esquire Attorney for Defendant Penske Logistics, LLC ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Dated: January 18, 2011 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID No. 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 07040-01045 Attorney for Defendant Penske Logistics LLC MAURA A. and COURT OF COMMON PLEAS BRIAN C. FRY CUMBERLAND COUNTY PENNSYLVANIA Plaintiffs No. CV-10-4874 vs. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED CIVIL ACTION - LAW PARTNERSHIP, EXEL, INC. and WHIRLPOOL CORPORATION Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on January 18, 2011, I served a copy of Defendant Penske Logistics, LLC's Answer to Defendant LIT Industrial's Crossclaim via First Class United States mail, postage prepaid as follows: Nicholas A. Veronis, Esquire Hagelgans & Veronis 233 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs William D. Kennedy, Esquire White and Williams, LP One Westlakes 1235 Westlakes Boulevard, Suite 310 Berwyn, PA 19312 Attorney for Defendant LIT Industrial Curtis N. Stambaugh, Esquire McNees Wallace & Nurick 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant Exel, Inc. Wayne A. Graver, Esquire Lavin O'Neil Ricci Cederone & DiSipio 190 North Independence Mall West Suite 500 6th and Race Streets Philadelphia, PA 19106 Attorney for Defendant Whirlpool Corporation Christopher M. Reeser 4 , McNEES WALLACE & NURICK LLC Curtis N. Stambaugh ID No. 80565 Tucker R. Hull ID No. 306426 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 717.237.5435 cstambaugh(amwn.com ICE RR ;ONOTi 22111AR'29 ?' 110:4F" % l BLE'RLANO COUN 1 cif [:.NSYLVANEA Attomeys for Defendant Exel Inc. MAURA A. and BRIAN C. FRY Plaintiffs COURT OF COMMON PLEA OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CV-10-4874 V. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL INC. and WHIRLPOOL CORPORATION Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant Exel Inc., through its attorneys, McNees Wallace & Nurick LLC, certifies that (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed to Nicholas A Veronis, Esq., counsel for Plaintiff, at least twenty (20) days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and, (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. McNEES WALLACE & NURICK LLC By Curtis N. Stam augh I. D. No. 80565 Tucker R. Hull I . D. No. 306426 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 717.238.5435 cstambaug h(a.mwn. com Attorneys for Defendant Exel Inc. Dated: March 28, 2011 McNEES WALLACE & NURICK LLC Curtis N. Stambaugh ID No. 80565 Tucker R. Hull ID No. 306426 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 717.237.5435 cstambaugh(a-)mwn.com Attorneys for Defendant Exel Inc. MAURA A. and BRIAN C. FRY Plaintiffs V. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL INC. and WHIRLPOOL CORPORATION Defendants COURT OF COMMON PLEA OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CV-10-4874 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant Exel Inc., by its attorneys, McNees Wallace & Nurick LLC, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. McNEES WALLACE & NURICK LLC By Curtis N. mb ugh I.D. No. 80565 Tucker R. Hull I.D. No. 306426 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 717.238.5435 cstambaugh(a)mwn. com Attorneys for Defendant Exel Inc. Dated: February 28, 2011 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND MAURA A. and BRIAN C. FRY Plaintiffs NO. CV-10-4874 V. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED CIVIL ACTION - LAW PARTNERSHIP, EXEL INC. and WHIRLPOOL CORPORATION Defendants JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: P. James Navalkowsky, M.D. 410 S. Angle Street Mt. Joy, PA 17552 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Your entire file, including, but not limited to, office notes, notes of examinations, laboratory and x-ray reports, correspondence with other doctors and records of prescriptions written, with regard to Brian C. Fry, DOB: 9/13/72; SS#: 165-52-4399, at McNees Wallace & Nurick LLC, Attn: Curtis N. Stambaugh, 100 Pine Street, P. O. Box 1166, Harrisburg, PA 17108-1166. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Curtis N. Stambaugh, Esq. McNees Wallace & Nurick LLC 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717.237.5435 Supreme Court I.D. 80565 Attorneys for Defendant Exel Inc. BY THE COURT: Prothonotary Date: Seal of the Court Deputy COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND MAURA A. and BRIAN C. FRY Plaintiffs NO. CV-10-4874 v. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED CIVIL ACTION - LAW PARTNERSHIP, EXEL INC. and WHIRLPOOL CORPORATION Defendants JURY TRIAL DEMANDED CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the subpoena issued on Dated: have been produced. (Name & title of person complying) CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following Nicholas A. Veronis, Esq. HAGELGANS & VERONIS 223 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs Christopher M. Reeser, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Penske Logistics LLC William D. Kennedy, Esq. WHITE & WILLIAMS, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, Pa 19103 Attorney for Defendant LIT Industrial Limited Partnership Wayne A. Graver, Esq. Lavin, O'Neil, Ricci, Cedrone & Disipio, Suite 500 190 North Independence Mall West 6`h & Race Streets Philadelphia, PA 19106 Attorney to Whirlpool Corporation Curtis N. Stambaugh Dated: February 28, 2011 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following Nicholas A. Veronis, Esq. HAGELGANS & VERONIS 223 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs Christopher M. Reeser, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Penske Logistics LLC William D. Kennedy, Esq. WHITE & WILLIAMS, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, Pa 19103 Attorney for Defendant LIT Industrial Limited Partnership Wayne A. Graver, Esq. Lavin, O'Neil, Ricci, Cedrone & Disipio, Suite 500 190 North Independence Mall West 6th & Race Streets Philadelphia, PA 19106 Attorney to Whirlpool Corporation is . Stambau Dated: March 28, 2011 F' LE- D-O="F IC McNEES WALLACE & NURICK LLq THE PRO THONd- ARY Curtis N. Stambaugh ID No. 80565 u 11 ?„ _ AM 10: 5 G Tucker R. Hull ID No. 306426 100 Pine Street C .10MBERLAND COUNTY P. O. Box 1166 'LNNSYLVAINI11` Harrisburg, PA 17108-1166 717.237.5435 cstambaugh(amwn.com MAURA A. and BRIAN C. FRY Plaintiffs V. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL INC. and WHIRLPOOL CORPORATION Defendants Attorneys for Defendant Exel Inc. COURT OF COMMON PLEA OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CV-10-4874 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant Exel Inc., through its attorneys, McNees Wallace & Nurick LLC, certifies that (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed to Nicholas A Veronis, Esq., counsel for Plaintiff, at least twenty (20) days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached hereto as Exhibit A, (3) counsel for Plaintiff has waived the 20-day waiting period, (4) the waiver of Plaintiffs counsel is attached hereto as Exhibit B, and (5) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. McNEES WALLACE & NURICK LLC ? - By j is b ugh I . D. No. 80565 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 717.238.5435 cstambaugha-mwn.com Attorneys for Defendant Exel Inc. Dated: August 8, 2011 A McNEES WALLACE & NURICK LLC Curtis N. Stambaugh ID No. 80565 Tucker R. Hull ID No. 306426 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 717.237.5435 cstambaugho mwn.com Attorneys for Defendant Exel Inc. MAURA A. and BRIAN C. FRY Plaintiffs V. PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED PARTNERSHIP, EXEL INC. and WHIRLPOOL CORPORATION Defendants COURT OF COMMON PLEA OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CV-10-4874 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant Exel Inc., by its attorneys, McNees Wallace & Nurick LLC, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. McNEES WALLACE & NURICK LLC Curtis StarWugh I . D. No. 565 Tucker R. Hull I . D. No. 306426 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 717.238.5435 cstambaugh(aDmwn com Attorneys for Defendant Exel Inc. Dated: July 18, 2011 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND MAURA A. and BRIAN C. FRY Plaintiffs V. NO. CV-10-4874 PENSKE LOGISTICS LLC LIT INDUSTRIAL LIMITED CIVIL ACTION - LAW PARTNERSHIP, EXEL INC. and WHIRLPOOL CORPORATION Defendants JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records Argires, Becker & Westphal 2150 Harrisburg Pike, Suite 200 Lancaster, PA 17601 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Your entire file, including, but not limited to, office notes, notes of examinations, laboratory and x-ray reports, correspondence with other doctors and records of prescriptions written, with regard to Brian C. Fry, DOB: 9/13/72; SS#: 165-52-4399, at McNees Wallace & Nurick LLC, Attn: Curtis N. Stambaugh, 100 Pine Street, P. O. Box 1166, Harrisburg, PA 17108-1166. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Curtis N. Stambaugh, Esq. McNees Wallace & Nurick LLC 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717.237.5435 Supreme Court I.D. 80565 Attorneys for Defendant Exel Inc. BY THE COURT: Prothonotary Date: Seal of the Court Deputy CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following Nicholas A. Veronis, Esq. HAGELGANS & VERONIS 223 N. Duke Street Lancaster, PA 17602 Attorney for Plaintiffs Christopher M. Reeser, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Penske Logistics LLC William D. Kennedy, Esq. WHITE & WILLIAMS, LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, Pa 19103 Attorney for Defendant LIT Industrial Limited Partnership Wayne A. Graver, Esq. Lavin, O'Neil, Ricci, Cedrone & Disipio, Suite 500 190 North Independence Mall West 6th & Race Streets Philadelphia, PA 19106 Attorney to Whirlpool Corporation Curtis N. Stamba gh Dated: July 18, 2011 ?x?h??? 3 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND MAURA A. and BRIAN C. FRY Plaintiffs v. PENSKE LOGISTICS LLC NO. CV-10-4874 LIT INDUSTRIAL LIMITED CIVIL ACTION - LAW PARTNERSHIP, EXEL INC. and WHIRLPOOL CORPORATION Defendants JURY TRIAL DEMANDED WAIVER OF NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS PURSUANT TO RULE 4009.21 1, loo lIf f A . b?? III f , counsel for Plaintiffs Maura and Brian Fry, hereby agree to waive the 20 day Notice of Intent to Serve a Subpoena to Produce Documents Pursuant to Rule 4009.21 regarding the subpoena being issued on behalf of Defendant Exel Inc. to Argires, Becker & Westphal. Date: 7-36-/( Counsel for Plaintiffs HAGELGANS & VERONIS Nicholas A. Veronis, Esquire Attorney I.D.#: 46523 223 North Duke Street Lancaster, PA 17602 Telephone: (717) 295-7009 Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MAURA A. and BRIAN C. FRY, Plaintiffs VS. PENSKE TRUCK LEASING, LLC, and LIT INDUSTRIAL LIMITED PARTNERSHIP and EXEL, INC. and WHIRLPOOL CORPORATION, Defendants '°L7 GJ Civil Action No.: CI-10-4874 ` t JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above matter settled, ended, discontinued and costs paid. ra.a rah Nic of s A. Veronis Attorney for Plaintiffs DISCONTINUANCE CERTIFICATE 7. AND NOW, this day of AK d , 2012, this suit ha een marked as above directed Prothonotary CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing Praecipe To Discontinue was served by mailing, first class mail, postage prepaid, to the following: Via Email: cstambauah(&mwn.com Curtis N. Stambaugh, Esquire McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Via Email: cmreeser(a,mdwcg.com Christopher M. Reeser, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Via Email: kennedyw(d),whiteandwilliams.com William D. Kennedy, Esquire White & Williams 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103 Via Email: waraver(iOavin-law.com Wayne A. Graver, Esquire Lavin, O'Neil, Ricci, Cedrone & DiSipio Suite 500, 190 North Independence Mall West 6t' and Race Streets Philadelphia, PA 19106 HAGEL ANS & VERONIS By. ?(G? Nichol s A. Veronis, Esquire Attorney for Plaintiffs I.D. No.:46523 223 North Duke Street Lancaster, PA 17602 Telephone: (717) 295-7009 Facsimile: (717) 396-9746 Date: ?5-1-2-