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HomeMy WebLinkAbout04-4181NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 ATTORNEYS FOR PLAINTIFFS BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W 169 ASHFORD DRIVE ENOLA, PA 17025 Plaintiff(s) V. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: n SEARS, ROEBUCK & CO. d/b/a KENMORE 3333 BEVERLY ROAD HOFFMAN ESTATES, IL 60179 Defendant(s) JURY TRIAL DEMANDED PRAECIPE TO ISSUE WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue a Writ of Summons commencing an action against the named Defendant in the above-captioned matter. NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J., JR., ESQ ATTORNEYS FOR PLAINTIFFS Dated: August 19, 2004 GIN ?o. NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W 169 ASHFORD DRIVE ENOLA, PA 17025 Plaintiff(s) V. SEARS, ROEBUCK & CO. d/b/a KENMORE 3333 BEVERLY ROAD HOFFMAN ESTATES, IL 60179 Defendant(s). ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04 - glPl ?lui WRIT OF SUMMONS TO: Sears, Roebuck & Co. d/b/a Kenmore 3333 Beverly Road Hoffman Estates, 11 60179 YOU ARE HEREBY NOTIFIED that the above Plaintiff has commenced an action against you in the above litigation. BY THE PROTHONOTARY DATED: T oZcoy ? A • n) 12 2 \05 A\LIAB\T1M\LLPG\162185UMF\15000\50000 NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant NO. 04-41181 (Civil Term) JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned as counsel on behalf of the Defendant, Sears, Roebuck and Co. d/b/a Kenmore, with respect to the above-referenced matter. DATE: SOS. 7jt Z" BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, TIMOTHY J. M MAHON, ESQUIRE I.D. No. S2 4200( s umMi Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4181 (Civil Term) JURY TR][AL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this p? day of September 2004, served a copy of the foregoing Entry of Appearance via First Class United States mail, postage prepaid as follows: Richard J. Boyd, Jr., Esquire Nelson, Levin, deLuca & Horst Four Sentry Parkway Suite 300 Blue Bell, PA 19422 X1 'MS6 anne M. Parr \05_A\LIAB\TJM\LLPG\l62188\JMF\l 5000\50000 NORMAN AND JEAN DEISSLER, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant NO. 04-4181 (Civil Term) JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule directing Plaintiffs, Norman and Jean Deissler, to file a Complaint within twenty (20) days of service of the Rule or risk a judgment of Non Pros. MARSHALL, DENNEHEY, WARNER, COLF?NIAN D GOGGIN DATE: S ZUI 2w$ BY: T H'118t ON, ESQUIRE I.D. No.: 4200 Crunas Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney f br Defendant RULE AND NOW, this??ay of '9'C-P4 2004, upon consideration of the foregoing Praecipe, a Rule is hereby issued upon the Plaintiffs., Norman and Jean Deissler, to file a Complaint within twenty (20) days or suffer judgment of Non Pros. PROTHONOTARY SEAL NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4181 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this& day of September 2004, served a copy of the foregoing Praecipe for Rule to File Complaint via First Class United States mail, postage prepaid as follows: Richard J. Boyd, Jr., Esquire Nelson, Levin, deLuca & Horst Four Sentry Parkway Suite 300 Blue Bell, PA 19422 U S_ \\`. ore M. Parr (J .,o ?, ? r- 'c? t ri' n Fri ?• '?. . ? 1_'? _' i NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY SEARS, ROEBUCK AND CO. I CIVIL ACTION NO: 04-4181 D/B/A KENMORE Defendant(s) AFFIDAVIT OF SERVICE I, RICHARD J. BOYD, JR., affirm that I served a Writ of Summons upon Defendant, Sears, Roebuck and Co. d/b/a Kenmore under the exclusive care and custody of the U.S. Postal Service employing Certified Mail on September 1, 2004. A copy of the cover letter and a copy of the Return Receipt, PS Form 3811 documenting service of the Complaint are attached hereto as Exhibit A. Dated: September 21, 2004 NELSON LEVINE de LUCA & HORST, LLC BY: CGr?l' . RICHARD J. BOY , JR., ESQUIRE' rATTORNEYS FOR PLAINTIFFS EXHIBIT "A" N ` NELSON • LEVINE • de LUCA & HOIRST Four Sentry Parkway A LIMITED LIABILITY COMPANY Suite 300 ue Be ATTORNEYS AT LAW Phonne : e: 6 B 6111, 0 PA .8621.66500 500 PHILADELPHIA PRINCETON COLUMBUS FaX 610.862.6501 www.nldhIaw.com Reply to.. Richard J. Boyd, Jr. Direct: 610.862.6522 rboyd@nldMaw.com September 1, 2004 VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Nn 70041350 0002 2810 0951 Sears d/b/a Kenmore Sears National Customer Relations 3333 Beverly Road Hoffman Estate, IL 60179 Re: Deissler v Sears, Roebuck and Co. CCP Cumberland County No. 04-4181 Dear Sir or Madam: Enclosed please find a Praecipe to issue Writ of Summons and the Writ of Summons issued by the Court. This document officially commences a civil law suit against your company. You should immediately refer this matter to your legal department and/or insurance provider. Your immediate attention is essential. Very truly yours, NELSON LEVINE de LUCA & HORST, LLC ba oyd, Jr. RJB/bjp Enclosure cc: Brian Giffin (010170703036) (w/enclosure) v m Z a o- U o n r3 h ul m E Er \,&q65 U @ rl pi ? ru d 'i9 9m -4 .? 2 Rl 15 L a m C3 Y q OC g- O O ° WW LI ¢ T ¢ d ro 110 ME ° _ T Ol S @ m o r > E d N 9 C « r m m -aam a 'm 'Zo S C C ON m¢. NN !u =03$t GV ?RL?" G' E E f 3f 8rd yQ`0 a', Lo n O ?4 ti O a) 0 r- E io 0 ?a a a H U '6 ro r-f 0 a) roan G ro a) 0 >r ?4 -H -1 y O aj W E ro r) a) > C N v v ro U x w ro E ro s w a/ ro ro co CO 0 \ a1 M O O ?/] M x \ 77 a ¢ E 8 g N m m LL N E 2 co LL N d NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 iwicrvlAIN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s). ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 CERTIFICATE OF SERVICE I, Richard J. Boyd, Jr., Esquire, hereby certify that a true and correct copy of the Affidavit of Service was served on September 21, 2004, upon counsel listed below by United States Mail, postage prepaid. SEARS, ROEBUCK & CO. d/b/a KENMORE 3333 BEVERLY ROAD HOFFMAN ESTATES, IL 60179 Dated: September 21, 2004 NELSON LEVINE; de LUCA & HORST, LLC BY: CHARD J. BOYD, JR., ESQUIRE ATTORNEYS FOR PLAINTIFFS 2 c? - c? ._ ,, <?, ._? _. .,,; ? c.o ?' _ _ . c ; r ='.. . W -^ Gl NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s) ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed or any other claim or relief requested by the plaintiff. You may lose money or property rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717)-249-3166 (800)-990-9108 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s) COMPLAINT ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 Plaintiffs, by and through undersigned counsel and by way of Complaint against Defendant, hereby aver: 1. Plaintiffs are adult individuals who, at all times relevant hereto, resided at the home located at the address in the caption above (hereinafter "the premises"). 2. Defendant is, upon information and belief, a corporation organized and existing under the laws of a foreign state, with a principal place of 'business located at the address in the caption above, which regularly does business in the Commonwealth of Pennsylvania, County of Cumberland. It is a business, which sells, inter alia, ovens, and which did sell the oven at issue in this case, identified as a Kenmore Self-Cleaning Oven. 3. On or about September 12, 2003, a fire originated at the oven and thereafter spread to the premises, causing damages in the amount of $:14,139.74. 4. Defendant was provided with Plaintiffs' expert report, an open and continuing opportunity to inspect the oven and all file materials from Plaintiffs many months ago, thereby giving Defendant notice of all existing facts and circumstances surrounding this loss currently within the possession and knowledge of Plaintiffs. Doc #. 76892.doc COUNT I - STRICT LIABILITY 5. Plaintiffs incorporate herein by reference the above paragraphs as though the same were fully set forth at length. 6. Defendant is engaged, and at all times relevant hereto was engaged, in the business of selling, inter alia, ovens, and, specifically, selling the oven at issue in this case. 7. The aforementioned loss was caused by an unreasonably dangerous and defective oven, unsafe for its intended use; said loss occurring in the absence of abnormal use or reasonable secondary causes. Thereby, rendering Defendant liable to Plaintiffs under the "Malfunction Theory" of products liability. 8. As a direct and proximate result of the aforementioned defective product, Plaintiffs sustained and incurred damages as set forth above. 9. For these reasons, Defendant is strictly liable to Plaintiffs for the damages under the "Malfunction Theory" and the applicable case law of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiffs demand judgment in their favor and against Defendant in the amount of $54,139.74, plus interest, delay damages and such other relief as the Court deems appropriate under the circumstances. NELSON LE`JINE DELUCA & HORST, LLC B}r CHARD J FOYD, JR., E U ATTORN XS FOR PLAINTIFFS Dated: October 8, 2004 VERIFICATION RICHARD J. BOYD, JR. hereby states that he is the attorney for the Plaintiff and that the facts contained in the foregoing Complaint are true and correct to the best of his knowledge, information and belief. He understands that the statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904 concerning falsification to authorities. t Dated: October 8, 2004 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s). ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 CERTIFICATE OF SERVICE I, Richard J. Boyd, Jr., Esquire, hereby certify that a true and correct copy of Plaintiffs' Complaint was served on October 8, 2004, upon counsel listed below by United States Mail, postage prepaid. Timothy McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, Pennsylvania 17112 NELSON LEVVINE de LUCA & HORST, LLC XZICHARD J. BOYD, JR., ESIQUII ATTORNEYS FOR PLAINTIFFS Dated: October 8, 2004 ?? 1?,1 ? (1 _xr ti ["l --a :7:: ( _.? _ tnr" 'Crap -?t . . i l r > 'Y7 -; { C,J f ?l w -.: _ \05_A\LIAB\TJM\LLPG\l 65069\JMP119075\00201 NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4181 (Civil Term) JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT SEARS, ROEBUCK AND CO. TO PLAINTIFFS' COMPLAINT Defendant Sears, Roebuck and Co. hereby submits these Preliminary Objections pursuant to Pa.R.C.P. 1028 and Local Rule 211 and in support thereof avers the following: 1. Plaintiffs filed their Complaint in this action on or about October 9, 2004. 2. Defendant had previously served a Rule upon Plaintiffs, through their counsel, compelling the filing of a Complaint. 3. Defendant, through its counsel, received a copy of the Complaint on October 12, 2004 and thus these Preliminary Objections are timely. 4. Plaintiffs' Complaint is brief containing just nine Paragraphs and a prayer for relief. A true and correct copy of Plaintiffs' Complaint is attached hereto as Exhibit "A". 5. Plaintiffs' Complaint fails to meet the requirements for factual specificity of pleadings. 6. Accordingly, Defendant Sears, Roebuck & Co. respectfully requests that this Honorable Court grants its Preliminary Objections in the Nature of a Motion to Strike Plaintiffs' Complaint and requests that this Court enter an Order directing that Plaintiffs plead with factual specificity the nature and extent of the defect which Plaintiffs contend gave rise to their harm. WHEREFORE, Defendant Sears, Roebuck and Co. respectfully requests that this Honorable Court grant its Preliminary Objections in the Nature of a Motion to Strike Plaintiffs' Complaint. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE: O C -1- '26 BY: TIM T 7 J. ON, ESQUIRE LD. No. 5291 91 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717) 651-:3505 Attorney for Defendant, Sears, Roebuck and Co. cV- Y ,Y4 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s) ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 044181 NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed or any other claim or relief requested by the plaintiff. You may lose money or property rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717)-249-3166 (800)-990-9108 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s) COMPLAINT ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUM13ERLAND COUNTY CIVIL, ACTION NO: 04-4181 Plaintiffs, by and through undersigned counsel and by way of Complaint against Defendant, hereby aver: 1. Plaintiffs are adult individuals who, at all times relevant hereto, resided at the home located at the address in the caption above (hereinafter "the premises') 2. Defendant is, upon information and belief, a corporation organized and existing under the laws of a foreign state, with a principal place of business located at the address in the caption above, which regularly does business in the Commonwealth of Pennsylvania, County of Cumberland. It is a business, which sells, inter alia, ovens, and. which did sell the oven at issue in this case, identified as a Kenmore Self-Cleaning Oven. 3. On or about September 12, 2003, a fire originated at the oven and thereafter spread to the premises, causing damages in the amount of $54,139.74. 4. Defendant was provided with Plaintiffs' expert report, an open and continuing opportunity to inspect the oven and all file materials from Plaintiffs many months ago, thereby giving Defendant notice of all existing facts and circumstances surrounding this loss currently within the possession and knowledge of Plaintiffs. Doc N: 76892.doc COUNT I - STRICT LIABILITY 5. Plaintiffs incorporate herein by reference the above paragraphs as though the same were fully set forth at length. 6. Defendant is engaged, and at all times relevant hereto was engaged, in the business of selling, inter alia, ovens, and, specifically, selling the oven at issue in this case. 7. The aforementioned loss was caused by an unreasonably dangerous and defective oven, unsafe for its intended use; said loss occurring in the absence of abnormal use or reasonable secondary causes. Thereby, rendering Defendant liable to Plaintiffs under the "Malfunction Theory" of products liability. 8. As a direct and proximate result of the aforementioned defective product, Plaintiffs sustained and incurred damages as set forth above. 9. For these reasons, Defendant is strictly liable to Plaintiffs for the damages under the "Malfunction Theory" and the applicable case law of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiffs demand judgment in their favor and against Defendant in the amount of $54,139.74, plus interest, delay damages and such other relief as the Court deems appropriate under the circumstances. NELSON LEVINE DELUCA & HORST, LLC BY. CHARD J $E , JR., E QU ATTORNEYS FOR PLAINTIFFS Dated: October 8, 2004 VERIFICATION RICHARD J. BOYD, JR. hereby states that he is the attorney for the Plaintiff and that the facts contained in the foregoing Complaint are true and correct to the best of his knowledge, information and belief. He understands that the statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904 concerning falsification to authorities. i"' ICHARD J OY Dated: October 8, 2004 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s). ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 CERTIFICATE OF SERVICE I, Richard J. Boyd, Jr., Esquire, hereby certify that a true: and correct copy of Plaintiffs' Complaint was served on October 8, 2004, upon counsel listed, below by United States Mail, postage prepaid. Timothy McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, Pennsylvania 17112 NELSON LEVINE de LUCA & HORST, LLC CHARD J. BQ , JR., ESQUIRE ATTORNEYS FOR PLAINTIFFS Dated: October 8, 2004 NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4161 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on thi? day of October 2004, served a copy of the foregoing Preliminary Objections to Plaintiffs' Complaint via First Class United States mail, postage prepaid as follows: Richard J. Boyd, Jr., Esquire Nelson, Levin, deLuca & Horst Four Sentry Parkway Suite 300 Blue Bell, PA 19422 u me M. Parr NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s) ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the verification provided herein with that attached to the Complaint. NELSON LEVINE de LUCA & HORST, LLC Bi!?t kICHARD J. BOY-D, JR., ESQ ATTORNEYS FOR PLAINTIFFS Dated: October 20, 2004 VERIFICATION Bobbi Maerkl hereby states that she is a duly authorized representative of Erie Insurance Group, the real party in interest, and that the facts contained in the foregoing Complaint are true and correct to the best of her knowledge, information and belief. She understands that the statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 concerning falsification to authorities. DATED: Bobbi Maerkl 0 Alto NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 tvUKMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s). ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 CERTIFICATE OF SERVICE I, Richard J. Boyd, Jr., Esquire, hereby certify that a true and correct copy of the Praceipe to Substitute Verification was served on October 20, 2004, upon counsel listed below by United States Mail, postage prepaid. Timothy McMahon, Esquire Marshall, Dennehey, Warner, Coleman,& Goggin 4200 Crums Mill Road, Suite B Harrisburg, Pennsylvania 17112 NELSON LEVINEE de LUCA & HORST, LLC ICHARD J. B0 D, JR., ES U Dated: October 20. 2004 ATTORNEYS FOR PLAINTIFFS U NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s) ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 ANSWER OF PLAINTIFFS TO THE PRELIMINARY OBJECTIONS OF DEFENDANT AND NOW, come the Plaintiffs, Norman and Jean Deissler, by and through undersigned counsel, and hereby file their Answer to the Preliminary Objections of Defendant. Pursuant to Pa.R.C.P. 1028 and local rule 1028 (c), Plaintiffs answer as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. Plaintiffs' Complaint, attached to the Preliminary Objections of Defendant as Exhibit "A", speaks for itself. 5. Denied. Plaintiffs' Complaint is sufficiently specific under the rules and under Pennsylvania case law. 6. Denied. The nature and extent of the defect are clearly set forth in the Complaint as well as in all of Plaintiffs' investigation documentation, which was provided to Defendant and its counsel months ago. Accordingly, Defendant and its counsel are well aware of all of the relevant facts and circumstances of this case, thereby rendering the Preliminary Objections of Defendant meritless. WHEREFORE, Plaintiffs respectfully request that this Honorable Court overrule the Preliminary Objections of Defendant, and order Defendant to file an answer to Plaintiffs' Complaint within twenty (20) days. NELSON LEVINE de LUCA & HORST, LLC RICHARD J. BOVb, JR., ESQUI?2 ATTORNEYS FOR PLAINTIFFS Dated: November 9, 2004 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s). ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 CERTIFICATE OF SERVICE I, Richard J. Boyd, Jr., Esquire, hereby certify that a true and correct copy of the Answer of Plaintiffs To The Preliminary Objections of Defendant was served on November 9, 2004, upon counsel listed below by United States Mail, postage prepaid. Timothy McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, Pennsylvania 17112 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. B04, JR., E S Q ?IR I ATTORNEYS FOR PLAINTIFFS Dated: November 9, 2004 3 r"? na ,. .. 1 , ?.a ?? -?7 -r. x'77 ;_: '*t ?}.? ??? ,_. ? ? ? . ?? t r.? _? ? r` __j . 9'i ?.. *?.;? f ?? ?+? '^_ ? ?.i'l , .?"` PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY/OF CUMBERLAND COUNTY: Please list the within matter for the next: ? Pre-Trial Argument Court ® Argument Court -------------------------------------------- --------- CAPTION OF CASE (entire caption must be stated in full) NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4181 (Civil Term) JURY TRIAL DEMANDED No. 4181 Civil Term 20 04 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to compliant, etc.): Defendant Sears, Roebuck and Co.'s Preliminary Objections to Plaintiffs' Complaint. 2. Identify counsel who will argue case: (a) for Plaintiffs: Richard Boyd, Jr., Esquire - Four Sentry Parkway, Suite 300, Blue Bell, PA 19422 (b) for Defendant Sears, Roebuck and Co.: Timothy J. McMahon, Esquire - 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 8, 2004 (A _--- -- Timothy J. M ah n Attorney for Defendant Sears, Roebuck and Co. Dated: 11/17/04 \05_A\LIAB\TJM\LLPG\l 65094VMF\ 19075\00201 NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4181 (Civil Term) JURY TR]fAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ?1 day of November 2004, served a copy of the foregoing Praecipe for Listing Case for Argument via First Class United States mail, postage prepaid as follows: Richard J. Boyd, Jr., Esquire Nelson, Levin, deLuca & Horst Four Sentry Parkway Suite 300 Blue Bell, PA 19422 anne M. Parr C: ^7 71 NORMAN DEISSLER IN THE COURT OFCOMMON PLEAS OF AND JEAN DEISSLER, husband CUMBERLAND COUNTY, PENNSYLVANIA And wife V. SEARS, ROEBUCK & COMPANY : NO. 2004 - 4181 CIVIL d/b/a/ KENMORE IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, GUIDO, J. ORDER OF COURT AND NOW, this 13TH day of DECEMBER, 2004, after review of the parties' briefs, and having heard argument thereon', Defendant's preliminary objection challenging the specificity of Plaintiffs' complaint is SUSTAINED. Plaintiffs are granted twenty (20) days within which to file a more specific pleading. Edward E. Guido, J. Richard J. Boyd, Jr., Esquire . Four Sentry Parkway fT Suite 300 ?dt Blue Bell, Pennsylvania 19422 1.1?imothy J. McMahon, Esquire 4200 Crums Mill Road, Suite B Harrisburg, Pa. 17112 ' We note that plaintiffs' counsel elected not to attend Argument Court. I IJ --z J N NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. DB/A KENMORE Defendant(s) ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed or any other claim or relief requested by the plaintiff. You may lose money or property rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association. 32 S. Bedford Street Carlisle, PA 17013 (717)-249-3166 (800)-990-9108 U NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s) ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 FIRST AMENDED COMPLAINT Plaintiffs, by and through undersigned counsel and by way of Complaint against Defendant, hereby aver: 1. Plaintiffs are adult individuals who, at all times relevant hereto, resided at the home located at the address in the caption above (hereinafter "the premises"). 2. Defendant is, upon information and belief, a corporation organized and existing under the laws of a foreign state, with a principal place of business located at the address in the caption above, which regularly does business in the Commonwealth of Pennsylvania, County of Cumberland. It is a business, which sells, inter alia, ovens, and which did sell the oven at issue in this case, identified as a Kenmore Self-Cleaning Oven. 3. On or about September 12, 2003, a fire originated at the oven and thereafter spread to the premises, causing damages in the amount of $54,139.74. 4. Defendant was provided with Plaintiffs' expert report, an open and continuing opportunity to inspect the oven and all file materials from Plaintiffs many months ago, thereby giving Defendant notice of all existing facts and circumstances surrounding this loss currently within the possession and knowledge of Plaintiffs. Doc #: 83152.doc COUNT I - STRICT LIABILITY 5. Plaintiffs incorporate herein by reference the above paragraphs as though the same were fully set forth at length. 6. Defendant is engaged, and at all times relevant hereto was engaged, in the business of selling, inter alia, ovens, and, specifically, selling the oven at issue in this case. 7. The aforementioned loss was caused by an unreasonably dangerous and defective oven, unsafe for its intended use; said loss occurring in the absence of abnormal use or reasonable secondary causes. Thereby, rendering Defendant liable to Plaintiffs under the "Malfunction Theory" of products liability. 8. Upon information and belief, the nature of the defect was the self-cleaning feature of the oven caused it to over-heat, the oven's fail-safe mechanism then malfunctioned and did not shut the oven off. 9. As a direct and proximate result of the aforementioned defective product, Plaintiffs sustained and incurred damages as set forth above. 10. For these reasons, Defendant is strictly liable to Plaintiffs for the damages under the "Malfunction Theory" and the applicable case law of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiffs demand judgment in their favor and against Defendant in the amount of $54,139.74, plus interest, delay damages and such other relief as the Court deems appropriate under the circumstances. NELSON LEVINE DELUCA & HORST, LLC s n /^7 i;7 - > j BY: RICHARD J B O YD, JI 8SOUW ATTORNEYS FOR PLAINTIFFS Dated: December 21, 2004 VERIFICATION Bobbi Maerkl hereby states that she is a duly authorized representative of Erie Insurance Group, the real party in interest, and that the facts contained in the foregoing Complaint are true and correct to the best of her knowledge, information and belief. She understands that the statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 concerning falsification to authorities. elA Bobbi Maerkl DATED: /Z//,,6y NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s). ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 CERTIFICATE OF SERVICE I, Richard J. Boyd, Jr., Esquire, hereby certify that a true and correct copy of Plaintiffs' Complaint was served on December 21, 2004, upon counsel listed below by United States Mail, postage prepaid. Timothy McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite 13 Harrisburg, Pennsylvania 17112 Dated: December 21, 2004 NELSON LEVINE de LUCA & HORST, LLC BY:r' RICHARD J. BOYD, JR., ESQU ATTORNEYS FOR PLAINTIFFS l C? d C> t.° C= -TI 511 S W ` .C? \05_A\LIAB\TJM\LLPG\174680\JMF \23080\00168 NORMAN AND JEAN DEISSLER, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant NO. 04-4181 (Civil Term) JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Plaintiffs, Norman and Jean Deissler c/o Richard J. Boyd, Jr., Esquire Nelson, Levin, deLuca & Horst Four Sentry Parkway, Suite 300 Blue Bell, PA 19422 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. DATE: 112 VO"j Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: TIM T Y J. M ON, ESQUIRE I.D. No. 52918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Sears, Roebuck and Co. VOS AUAMUNI UMI 72174VMR23080A00168 NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. SEARS, ROEBUCK & CO, d/b/a KENMORE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4181 (Civil Term) JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF SEARS. ROEBUCK and CO. TO PLAINTIFFS' FIRST AMENDED COMPLAINT L Admitted in part; denied in part. It is admitted only that Plaintiffs are who they say they are. It is specifically denied that Plaintiffs reside at the home located at the address in the caption above because there is no address listed in the caption above. Accordingly, all further averments set forth in this Paragraph are denied pursuant to Pa.R.C.P. 1029(c). 2. Admitted in part; denied in part. It is admitted that Defendant Sears, Roebuck and Co. is a corporation which conducts business in the Commonwealth of Pennsylvania. It is further admitted that Defendant Sears, Roebuck and Co. sells ovens from time to time. It is specifically denied that Defendant sold the oven "at issue in this case, identified as a Kenmore Self-Cleaning Oven" on the basis that at present Defendant lacks information sufficient to form a belief as to the truth of that averment and accordingly the averment is denied pursuant to Pa.R.C.P. 1029(c) and proof thereof is demanded at trial, to the extent relevant. 3. Denied. The averments set forth in this Paragraph constitute legal conclusions within the meaning of Pa.R.C.P. 1029(e) and accordingly these averments are denied and proof thereof is demanded at trial, if relevant. 4. Denied. The averments set forth in this Paragraph constitute legal conclusions within the meaning of Pa.R.C.P. 1029(e) and accordingly these averments are denied and proof thereof is demanded at trial, if relevant. COUNT I - STRICT LIABILITY 5. Defendant Sears, Roebuck and Co. incorporates by reference its responses to Paragraphs 1 through 4 above as if set forth at length herein. 6. Admitted in part; denied in part. It is admitted only that Defendant has from time to time sold ovens to the general public. It is specifically denied that Defendant sold the oven at issue in this case. To the contrary, and at present, Defendant lacks information upon which to form a belief as to the truth of this averment and accordingly this averment is denied in accordance with Pa.R.C.P. 1029(c) and proof thereof is demanded at trial, if relevant. 7. Denied. The averments set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) and accordingly these averments are denied and proof thereof is demanded at trial, if relevant. By way of further answer, Defendant Sears, Roebuck and Co. specifically denies that it supplied a product to Plaintiffs in this case, which product was either unreasonably dangerous and/or defective and/or unsafe for its intended use and/or which malfunctioned in the absence of abnormal use and/or reasonable secondary causes as alleged. Proof thereof to the contrary is demanded at trial, to the extent relevant. 8. Denied. The averments set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) to which no further responsive pleading is required and accordingly these averments are denied and proof thereof is demanded at trial, to the extent relevant. 9. Denied. The averments set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) to which no further responsive pleading is required and accordingly these averments are denied and proof thereof is demanded at trial, to the extent relevant. 10. Denied. The averments set forth in this Paragraph constitute conclusions of law within the meaning of Pa.R.C.P. 1029(e) to which no further responsive pleading is required and accordingly these averments are denied and proof thereof is demanded at trial, to the extent relevant. WHEREFORE, Defendant Sears, Roebuck and Co. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. NEW MATTER DIRECTED TO PLAINTIFFS 11. Plaintiffs' Amended Complaint fails to state a cause of action against Defendant Sears, Roebuck and Co. upon which relief can be granted as a matter of law. 12. The damages described by Plaintiffs in their Amended Complaint, all such damages being expressly denied, were caused in whole, or in part, by persons and/or entities and/or parties over whom Defendant had neither control, nor right of control as a matter of law. 11 To the extent that evidence may show that other persons, parties or other legal entities caused or contributed to damages claimed by Plaintiffs as described in their Amended Complaint, all such damages being expressly denied, no act or omission or other liability-producing conduct on the part of Defendant was the legal or factual cause of such damages as a matter of law. 14. To the extent that the evidence may show that other persons, parties or legal entities misused, abused and/or otherwise failed to follow directions concerning the subject appliance which caused and/or contributed to those damages claimed by Plaintiffs in their Amended Complaint, all such damages being expressly denied, acts and/or omissions and/or other conduct on the part of Defendant was not the legal or factual cause of such damages as a matter of law. 15. In order to preserve the defense, and pending further discovery in this matter, Defendant avers that Plaintiffs' claims may be barred and/or limited by the Doctrine of Spoliation of Evidence to the extent that Plaintiffs and/or their representatives have failed to maintain evidence critical to a determination of the operation of the subject appliance before and at the time of the fire which is the subject of Plaintiffs' Amended Complaint. 16. Plaintiffs' claims may be barred and/or limited by the Doctrine of Collateral Estoppel. 17. Defendant reserves its right to raise one or more of those defenses set forth in Pa.R.C.P. 1030. 18. In order to preserve the defense, and pending discovery in this matter, Defendant avers that persons, parties and/or entities other than Defendant made material and substantial post-sale changes and/or modifications to the subject appliance, thus eliminating Defendant's responsibility therefore. 19. At the time the subject appliance was allegedly sold by Defendant to Plaintiffs, the product was not defective as a matter of law. 20. Plaintiffs have not as a matter of law maintained their burden of negating reasonable secondary causes concerning the subject fire and/or damages as described in Plaintiffs' Amended Complaint as a matter of law. WHEREFORE, Defendant Sears, Roebuck and Co. demands judgment in its favor and against Plaintiffs together with such other relief as this Court shall deem appropriate. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN >A ? DATE: Z? BY: ` TIM T :1 J. ON, ESQUIRE I.D. No. 52918 4200 Crums Mill oad, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney far Defendant, Sears, Roebuck and Co. VERIFICATION I hereby affirm that the following facts are correct: Sears, Roebuck & Co. is a Defendant in the foregoing action and I am authorized to execute this Verification on their behalf. The attached Answer with New Matter to Plaintiffs, First Amended Complaint is based upon information which has been gathered by my counsel in the defense of this lawsuit. The language of the Answer with New Matter is that of counsel and not of me. I have read the Answer with New Matter, and to the extent that the responses are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. To the extent that the contents of the responses are that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid responses are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. DATE: o?b ?S BY: ??d.CGcX2JU?J Donna Edwards Title: ! t??zi o,eC a(t5t NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4181 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Pan, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this cti:e day of January 2005, served a copy of the foregoing Answer with New Matter to Plaintiffs' Amended Complaint via First Class United States mail, postage prepaid as follows: Richard J. Boyd, Jr., Esquire Nelson, Levin, deLuca & Horst Four Sentry Parkway Suite 300 Blue Bell, PA 19422 ?S • ?C?\1 ne M. Pan f ? r-> !1 ?_r" ?1 !..' "? r ?.? r;;? '' ra _,.,?? ,yr1 car = ,L, .., ?, r.? _,' ?? NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 AND JEAN DEISSLER, Plaintiff(s) ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant(s) CIVII. ACTION NO: 04-4181 ANSWER OF PLAINTIFFS TO THE NEW MATTER OF DEFENDANT 11-20. Denied. All of these allegations contain conclusions of law to which no responsive pleading is required. By way of further response, to the extent that these allegations also contain factual averments, after reasonable investigation, answering Plaintiffs are without sufficient knowledge to form a belief as to their truth and, therefore, they are deemed denied. NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD JBOYD, ESQUIRE ATTORNEYS FOR PLAINTIFFS Dated: February 8, 2005 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 AND JEAN DEISSLER, H/W Plaintiff(s) ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY V. SEARS, ROEBUCK AND CO. D/B/A KENMORE CIVIL ACTION NO: 04-4181 Defendant(s). CERTIFICATE OF SERVICE I, Richard J. Boyd, Jr., Esquire, hereby certify that a true and correct copy of the Answer of Plaintiffs To The New Matter of Defendant was served on February 8, 2005, upon counsel listed below by United States Mail, postage prepaid. Timothy McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, Pennsylvania 17112 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. OYD, J R., ESQUIRE ATTORNEYS FOR PLAINTIFFS Dated: February 8, 2005 ? . ?? M1 S ?? V ` ' i?:: { C' L=?' NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. SEARS, ROEBUCK & CO. 0/b/a KENMORE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA NO. 04-4181 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.24 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.24, Defendant certifies that: (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty 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 the 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. DATE: MARSHALL, DENNEHEY, WARNER, COLEMAN & GOG N BY: K / I -: ` 11M0 '1'HY J Mc N, ESQUIRE I.D. NO. 52918 4200 Crums Mill Roa , Suite B Harrisburg, PA 17112 717) 651-3505 - Attorney for Defendant COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND NORMAN AND JEAN DEISSLER, IN THE COURT OF COMMON PLEAS H/W, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs I. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant iv v. U--- 101 (l IItl IcAIil) JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Jim Bumgardner Chief Engineer East PennsbOTO Fire Department 202 Third Street P.O Box 89, Summerdale, PA 17093 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: Any an?i all information including but not limited to your report photographs, notes, diagrams and/or any other information pertainme to vour investigation of a fire which occurred on September 12, 2003 at 169 Ashford Drive Enola PA at: Marshall Dennehey Warner Coleman & Goeein 4200 Crums Mil] Road. Ste B Harrisbu PA 17112 (Address) 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 khis subpoena may seek a court order compelling you to comply with it. THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Timothy J McMahon gmpj e ADDRESS: 4200 Crums Mill Road. Suite B Harrisburg PA 17112 TELEPHONE: (717)_651-3504 SUPREME COURT ID# 52918 ATTORNEY FOR: Defendants DATE: ''' I?a2Lk- ayt a o&& Seal of the Court By the Court: Protho NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4181 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.24 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.24, Defendant certifies that: (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty 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 the 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. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN TIMOTHY J. McMAHON, ESQUIRE I.D. NO. 52918 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 - Attorney for Defendant DATE: BY: COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND NORMAN AND JEAN DEISSLER, IN THE COURT OF COMMON PLEAS H/W, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. SEARS, ROEBUCK & CO. d/b/aNMORE, Defendant iNv. v4--+101 (?tvll tuim) JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Joe Landis. Detective, East Pennsboro Township Police 98 S Enola Drive Enola PA 17025- 2779 at: Marshall, Dennehev Warner Coleman & Gog fig 4200 Crums Mill Road Ste B Harrisbure PA 17112 (Address) You ray deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certific to 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: NAME: Timothy J cMahon. Esquire ADDRESS: 42QQ Crams Mill Road, Suite B Harrisburg PA 17112 TELEPHONE: (717)651-35Q4 SUPRFME COURT 1D# 52916 ATTORNEY FOR: Peferidants DATE: Y .Ca&rk ayl Seat of the Court By the Court: ` Prothono Deputy (Name of Person or Entity) Within Iwent_v (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thing: r..a c"J ??-_• Sm Cl ?=j v r0 :c ul NORMAN AND JEAN DEISSLER, H/W, Plaintiffs V. SEARS, ROEBUCK & CO. d/b/a KENMORE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4181 (Civil Term) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Ann-Marie Pifer, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do thereby certify that on this 26th of April 2005, I served a true and correct copy of the foregoing jocument via regular mail, postage pre-paid as follows: iehard J. Boyd, Jr., Esquire elson, Levin, DeLuca & Horst our Sentry Parkway, Suite 300 lue Bell, PA 19422 A -MARIE ER v' o i y C? ?y N _ r„rY NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.. 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiffs v. SEARS, ROEBUCK AND CO. DB/A KENMORE Defendant ATTORNEY FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 PLAINTIFFS' MOTION TO COMPEL DEFENDANT'S ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS Plaintiffs, by and through their undersigned counsel, hereby respectfully move this Honorable Court to enter an Order pursuant to Pa. R.C.P. 4019 compelling Defendant, Sears, Roebuck and Co., d/b/a Kenmore to provide full, complete and verified Answers to Interrogatories and Request for Production of Documents and, in support thereof, avers as follows: The instant civil action was commenced when Plaintiff filed a Writ of Summons on August 23, 2004. 2. On June 20, 2005, Plaintiff served Interrogatories and Request for Production of Documents upon Defendant's counsel by first-class mail. A copy of Plaintiffs letter of June 20, 2005 is attached hereto as Exhibit "A". 3. On August 22, 2005, having not received responses from Defendant, Plaintiff sent a letter requesting answers to discovery requests sent on June 20, 2005. A copy of Plaintiffs letter of August 22, 2005 is attached hereto as Exhibit "B". 4. To date, Defendant has failed to respond to Plaintiffs Interrogatories and Request for Production of Documents. 5. Plaintiff cannot properly prepare for trial and, is prejudiced by Defendant's failure to respond. WHEREFORE, Plaintiff requests this Honorable Court to enter an Order compelling Defendant to provide Answers to Interrogatories and Request for Production of Documents within ten (10) days of this Order, or suffer sanctions upon further application to the Court. NELSON LEVINE de LUCA & HORST, LLC ICHARD J. 130 JR., SQ ATTORNEY FOR PLAINTIFFS Dated: September 23, 2005 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiff(s) V. SEARS, ROEBUCK AND CO. DB/A KENMORE Defendant(s). ATTORNEYS FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF MOTION TO COMPEL The Pennsylvania Rules of Civil Procedure mandate that responses to Interrogatories shall be filed within thirty (30) days of service. As Pa.R.C.P. 4006(a)(2) provides, in pertinent part: ...the answering party shall file and serve a copy of the answers, and objections, if any, within thirty (30) days after service of the interrogatories. In the instant case, Defendant has failed to answer the Interrogatories and Request for Production of Documents propounded by Plaintiffs. Furthermore, Plaintiffs, in their discovery requests, seeks information which is clearly relevant under the Pennsylvania Rules of Civil Procedure. In light of the foregoing, Plaintiffs respectfully request this Honorable Court to enter the attached proposed Order. NELSON LEVINE de LUCA & HORST, LLC 7 14 CHARD J. Bi JR., SQU ATTORNEY FOR PLAINTIFF Dated: September 23, 2005 N ` NELSON • LEVINE • de LUCA & HORST d H A 1.24a m LIABILITY COMPANY ATTORNEYS AT LAW PHILADELPHIA PRINCETON COLUMBUS June 20, 2005 Timothy McMahon, Esquire i ? Marshall, Dennehey, Warner, Coleman & Goggin / 4200 Crums Mill Road, Suite B Harrisburg, Pennsylvania 17112 Re: Deissler v. ars, Roebuck and Co. d/b/a Kenmore Cu and County Docket No. 04-4181 Dear Mr. McMahon: Four Sentry Parkway Suite 300 Blue Bell, PA 19422 Phone: 610.862.6500 Fax: 610.862.6501 www.nldhlaw.com Reply to: Richard J. Boyd, Jr. Direct: 610.862.6522 rboyd@nldhlaw.com Enclosed please find Plaintiffs' Interrogatories and Request: for Production of Documents Addressed to Defendant Sears, Roebuck & Co. d/b/a Kenmore in the above-referenced matter. Kindly provide responses in accordance with the Rules. Thank you. Very truly yours, NELSON LEVINE de LUCA & HORST, LLC /;zf, % Richard J. Boyd, Jr. RJB/cp Enclosures N ` NELSON • LEVINE • de LUCA & HORST d H A L mrrED UkBuxrY COMPANY ATTORNEYS AT LAW Four Sentry Parkway Suite 300 Blue Bell, PA 19422 Phone: 610.862.6500 Far: 610.862.6501 PHILADELPHIA CHERRY HILL COLUMBUS August 22, 2005 Timothy McMahon, Esquire Marshall, Dennehey, Warner, Coleman & Goggin C 4200 Crums Mill Road, Suite B Harrisburg, Pennsylvania 17112 Re: Deissler . Sears, Roebuck and Co. d/b/a Kenmore nd County Docket No. 04-4181 Dear Mr. McMahon: www.ntdhtaw.com Reply to: Richard J. Boyd, Jr. Direct: 610.862.6522 rboyd@nldhlaw.com On or about June 20, 2005, I forwarded to you Plaintiffs' Interrogatories and Request for Production of Documents Addressed to Defendant Sears, Roebuck & Co. d/b/a Kenmore. To date, I have not received responses. Kindly provide responses at your earliest opportunity to avoid motion practice. Thank you. Very truly yours, NE SON LEVINE de LUCA & HORST, LLC 4A y g / Richard J. Boyd, Jr. RJB/cp VERIFICATION RICHARD J. BOYD, JR., hereby states that he is the attorney for the Plaintiffs and that the facts contained in the foregoing Motion to Compel are true and correct to the best of his knowledge, information and belief. He understands that the statements herein are made subject to the penalties of 18 Pa.. C. S. Section 4904 concerning falsification to authorities. i * /1 CHARD J. I30 JR. NEY FOR PLAINTIFF TOR YAT Dated: September 23, 2005 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiffs V. SEARS, ROEBUCK AND CO. D/B/A KENMORE Defendant ATTORNEY FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 CERTIFICATE OF SERVICE I, Richard J. Boyd, Jr., Esquire, hereby certify that a true and correct copy of Plaintiffs' Motion to Compel was served on September 23, 2005, upon counsel listed below by United States Mail, postage prepaid. Timothy McMahon, Esquire Marshall, Dennehey, Warner, Coleman .& Goggin 4200 Crums Mill Road, Suite B Harrisburg, Pennsylvania 17112 NELSON LEVINE de LUCA & HORST, LLC BY: (co CHARD J. BO R, ESQ , ATTORNEY FOR PLAINTIFFS Dated: September 23, 2005 c2 ? .? cr f`+ ?' ?') , i?? i? ? _ ? , r t ?s a + ? M rr'""Io'?D ur.? 28^? NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 FOUR SENTRY PARKWAY, SUITE 300 BLUE BELL, PA 19422 (610) 862-6522 NORMAN AND JEAN DEISSLER, H/W Plaintiffs V. SEARS, ROEBUCK AND CO. DB/A KENMORE Defendant ATTORNEY FOR PLAINTIFFS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO: 04-4181 ORDER AND NOW, this day of 2005, upon consideration of Plaintiffs' Motion to Compel Defendant's Answers to Plaintiff's Interrogatories and Request for Production of Documents, it is hereby ORDERED and DECREED that Defendant will pfouide fi,n %c cnmple1P to Plaintiff's Interrogatories and Request for Production of Documents within ten (10) days of the date of this Order or risk appropriate sanctions upon further application to the court. BY THE COURT l 1P 1 S ? :3 " it 11.:ko SOTI Curtis R. Long Prothonotary (OfftLE of the 3prOtb01TOtarp Cumberranb QCountp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor q (8' CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA RCP230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6571