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HomeMy WebLinkAbout02-0682John R. Ninosky, Esquire Attorney I. D. No. 78000 GOIDBERG, KATZMAN & SHIPMAte, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiff SCOTT C. DIETZ and TINA MARIE DIETZ, 401 Diehl Road Mechanicsburg, PA 17055 Plaintiffs vs. MONTOUR OIL SERVICE COMPANY 40t~' and Derry Streets Harrisburg, PA 17111 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.C~- ~D.. CIVIL TERM JURY TRIAL DEMANDED ~OTICE TO THE DEFENDANT: YOU HA%~ BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering ~ written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered a9ainst you by the Court without further notJce for ~ny money claimed in the Complaimt or for any other claim or relief requested ~y the Plaintiff. You may lose money or property or other zights 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. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA ]70!3 Telephone: ('717 249-3166 (800 990-9108 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o pot abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINER© SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 (800) 990-9108 72308.1 John R. Ninosky, Esquire Attorney I. D. No. 78000 GOLDBERG, KATZPLAN & SHIPMAN, ?.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs SCOTT C. DIETZ and TINA PL~RIE DIETZ, 401 Diehl Road Mechanicsburg, PA 17055 Plaintiffs vs. MONTOUR OIL SERVICE COMPANY 40th and Derry Streets Harrisburg, PA 17111 IN THE COURT OF COMMON PLEAS OF CUMBERLA/qD COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.OA~L~. CIVIL TERM JURY TRIAL DENLANDED COMPI2%INT AND NOW, come the Plaintiffs, Scott C. and Tina Marie Dietz, by and through their counsel, Goldberg, Katzman & Shipman, P.C., who file this Complaint by respectfully stating the following: 1. Plaintiffs are married adult individuals who currently reside at 401 Diehl Road, Mechanicsburg, Cu~erland County, Pennsylvania, 17055. 2. Plaintiffs own their home, which is located at the above-referenced address. 3. It is believed and therefore averred that Defendant is a business entity with a place of business located at 40th and Derry Streets, Harrisburg, Dauphin County, Pennsylvania, 17111. 4. Defendant provides heating oil, and service of heating systems to homeowners. 5. As part of providing service to homeowners, Defendant offers residential service contracts for purchase by homeowners for labor and parts coverage, tune-up/cleanings, and 24-hour emergency service for heating systems. 6. Plaintiff purchased a residential service contract from Defendant, Plan D, which calls for labor and parts coverage for one tune-up and 24-hour emergency service. This plan also provides for the replacement of various parts contained in the heating system. A copy of the contract is attached hereto as Exhibit "A". 7. The service contract requires that in exchange for payment, Defendant is to provide one tune-up/cleaning to the holder of the contract per year. 8. On February 8, 2001, Plaintiffs had in force a service contract, and said contract had been in force for approximately the proceeding four years. 9. On February 8, 2001, a puff back occurred at the Plaintiffs' home, which caused property damage, and the imposition of expenses, and inconvenience, which would not have occurred but for the happening of the puff back. 10. The puff back was directly and proximately caused by the Defendant's negligence, and breach of contract, as will be stated with more particularity below. COUNT I Scott and Tina Dietz v. Montour Oil Service Co. Breach of Contract 11. Plaintiffs hereby incorporate the averments contained in paragraphs 1 through 11 of this Complaint as if set forth herein at length. 12. Plaintiffs and Defendant had entered into a residential service contract which required Defendant to provide at least one tune-up/cleaning of Plaintiffs' heating system per calendar year, in exchange for Plaintiffs paying the required contract price. 13. At all times, Plaintiffs paid all sums as required by the contract. 14. Defendant failed to provide the annual tune-up/cleaning as required by the contract. Thus, Defendant breached its contract with Plaintiffs concerning a tune-up/cleaning of Plaintiffs' heating system. 15. Though Plaintiffs had made payment to Defendant in the calendar years 1998, 1999, and 2000, Defendant failed to clean the Plaintiffs' heating system from February 11, 1999 until after the puff back which occurred on February 8, 2001. This is a period of over two (2) years, wherein Defendant received payment pursuant to the contract, but did not provide the required service. 16. As a direct result of Defendant's breach of the above- referenced contract, Plaintiffs have suffered the following damages: a. Payment of the service contract price though services were not provided by Defendant; b. Cost of cleaning personal property; c. Cost of cleaning personal belongings and furniture in their home; d. Cost of cleaning the walls and carpets contained in the home; e. Cost of painting the walls in their home; f. Forced to reside in a motel for 13 days; g. Forced to incur food charges over and above what would have occurred if being able to stay in their home; h. Utility charges; and g. General inconvenience. Ail of which would not have occurred if Defendant had fulfilled its obligations under the above-referenced contract. 17. Plaintiffs in no way inhibited, prohibited, and/or prevented Defendant from fulfilling its obligations under the contract. WHEREFORE, Plaintiffs demand judgment against Defendant in an amount in excess of the compulsory arbitration limits for Cumberland County, together with interest, delay damages, and costs of suit. COUNT II Scott and Tina Dietz v. Montour Oil Service Co. Neqliqence 18. Plaintiffs hereby incorporate the averments contained in paragraphs 1 through 17 of this Complaint as if set forth herein at length. 19. The puff back which occurred on February 8, 2001, was directly and proximately caused by the Defendant's negligence in that: a. Defendant failed to clean Plaintiffs' heating system; b. Defendant failed to inspect Plaintiffs' heating system; and c. Defendant failed to remove the soot from Plaintiffs' heating unit. 20. Defendant's service manager, Ken Lundy, has admitted that Defendant failed to adequately clean Plaintiffs' home, and that this failure caused the puff back. 21. As a direct and proximate result of Defendant's negligence as aforesaid, the following damages were caused: a. Payment of the service contract price though services were not provided by Defendant; b. Cost of cleaning personal property; c. Cost of cleaning personal belongings and furniture in their home; d. Cost of cleaning the walls and carpets contained in the home; e. Cost of painting the walls in their home; f. Forced to reside in a motel for 13 days; g. Forced to incur food charges over and above what would have occurred if being able to stay in their home; h. Utility charges; and g. General inconvenience. WHEREFORE, Plaintiffs demand judgment against Defendant in an amount in excess of the compulsory arbitration limits for Cumberland County, together with interest, delay damages, and costs of suit. DATE: 72308.1 Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. John.~. Ninosky, Esqu~/re Attorney I. D. No. 78000 P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiffs RETAIN THIS COPY FOR YOUR RECORDS RESIDENTIAL SERVICE CONTRACTS PLAN "A" TIME AND MATERIAL Chargeable Labor & Parts at current rates for Tune-Up and 24-Hour Emergency Service. One hour minimum charge & 1/4 hour travel time on all calls. PLAN "B' LABOR ONLY LABOR COVERAGE for one Tune-Up and 24-Hour Emergency Service. Labor to replace or repair parts listed in Plan D. Parts must be supplied by our company. $99.99 No Plumbing or Electrical Labor Is Included. PLAN "C' DOMESTIC OIL FIRED WATER HEATER SERVICE PLAN LABOR AND PARTS COVERAGE for one Tune-Up and 24-Hour Emergency Service. Parts replaced are limited to those listed in Plan D. $79.99 Does Not Include Gas & Electric Water Heaters, Plumbing or Electrical Labor. PLAN LABOR AND PARTS LABOR AND PARTS COVERAGE for one Tune-Up a~ 24-Hour Emergency Service. Parts replaced are limit~ to the following: Aquastats Air Filters Blower Motor Blower Fan Blower Belt Blower Pulley Burner Motor Burner Fan Boiler Drain . Boiler Gauge Glass Cad Cell Circulator Beadng Assy Circulator Motor Delayed Oil Valve Draft Regulator Fill Cap Vent Cap Fuel Pump Fan & Limit Control Hydronic Relief Valve Ignition Electrodes Ignition Porcelain Ignition Leads Ignitibn Transformer Oil Filter Oil Nozzle Oil Pump Coupling Pressure Tml Pressure Reducing Valve Primary Control Standard Thermostat Steam Relief Valve Steam Pressure Gauge Smoke Pipe Ells Smoke Pipe Lengths Strainers Only parts mentior~ed and labor to repair or replace those parts are cove~ by this Plan, or Plans B & C. Plumbing & Electrical Labor is not Include Items only co. mad ff defective thru normal operation. Company reser~ PLEASE READ TERMS & CONDITIONS ON REVERSE SIDE GENERAL CONDITIONS 1. THIS AGREEMENT IS BETWEEN THE CUSTOMER AND MONTOUR OIL SERVICE COMPANY, HERE AND AFTER CALLED THE COMPANY. 2. THIS AGREEMENT IS ONLY AVAILABLE AS AN ADDITIONAL SERVICE TO THE CUSTOMERS THAT PURCHASE ALL HEATING OIL FROM COMPANY. THIS AGREEMENT WILL AUTOMATICALLY TERMINATE IF THE CUSTOMER CEASES TO PURCHASE COMPANY'S HEATING OIL, FAILS TO PAY FOR ALL HEATING OIL, PARTS, LABOR OR OTHER CHARGEABLE ITEMS WHEN DUE, OR RENDERS OR PERMITS ANYONE OTHER THAN THE COMPANY TO SERVICE THE BURNER OR EQUIPMENT, UNLESS SO INSTRUCTED BEFOREHAND BY COMPANY. THERE SHALL BE NO OBLIGATION UPON COMPANY TO PERFORM ANY SERVICE OR PROVIDE PARTS AFTER TERMINATION OF THIS AGREEMENT. UPON TERMINATION, THERE IS NO REFUND OR CREDITS ALLOWED. THIS AGREEMENT IS NON-TRANSFERABLE. 3. THIS AGREEMENT IS OFFERED TO ALL CUSTOMERS SUBJECT TO INSPECTION AND APPROVAL OF EQUIPMENT. IF, UPON INSPECTION, CUSTOMER'S EQUIPMENT IS FOUND TO BE UNACCEPTABLE OR OBSOLETE, CUSTOMER'S CONTRACT COVERAGE WILL BE CANCELED ANDA PRORATED REFUND WILL BE RETURNED TOCUSTOMER. REPAIRS REQUIRED TO PLACE EQUIPMENT IN ACCEPTABLE CONDITION ARE EXCLUDED AND WILL BE CHARGED SEPARATELY. 4. THIS AGREEMENT WILL BECOME EFFECTIVE IMMEDIATELY FOLLOWING THE INSPECTION AND APPROVAL OF CUSTOMER'S EQUIPMENT AS REQUIRED ABOVE AND PAYMENT OF SERVICE CONTRACT INVOICE. THIS AGREEMENT IS EFFECTIVE FOR A 12 MONTH PERIOD. 5. THIS IS NOT AN AGREEMENT TO SELL OR DELIVER HEATING OIL FJY COMPANY. THIS AGREEMENT COVERS ONLY THE ITEMS OF SERVICE AND PARTS EXPRESSLY PROVIDED. 6. THIS AGREEMENT DOES NOT COVER REPAIR OR SERVICE OF EQUIPMENT DAMAGED DUE TO FIRE, FLOOD, LIGHTNING, FREEZE UP, AND OTHER ACTS OF GOD, NOR SERVICE CALLS CAUSED BY IMPROPER SET~ING OF THERMOSTAT, SWITCHES IN OFF POSITION, EMPTY FUEL TANKS, FILLING BOILERS WITH WATER, DRAINING EXPANSION TANKS, REPLACING FUSES, OR TAMPERING WITH EQUIPMENT. COMPANY'S OBMGATION TO FURNISH PARTS SPECIFICALLY LISTED HEREIN SHALL BE SUBJECT TO THEIR AVAILABILITY THROUGH USUAL SUPPLY SOURCES. REPLACEMENT OF OBSOLETE ITEMS FOR WHICH PARTS ARE NOT AVAILABLE WILL SE DONE ON A TIME AND MATERIAL BASIS. 7. THIS AGREEMENT COVERS ,ONLY THE VISUAL INSPECTION OF ~ CHIMNEY. IT DOES NOT COVER THE CORRECTION OR REPAIR OF ^ BLOCKED, LEAKING, DETERIORATED, COLLAPSED ETC. CONDITIO AT ANY TIME. THE PROPERTY OWNERS WILL BE NOTIFIED OF SU, CONDITIONS FOUND AND IT IS THE PROPERTY OWNER'S F SPONSIBILITY TO CORRECT SUCH CONDITIONS. THE COMPA; RESERVES THE RIGHT TO CANCEL THIS CONTRACT IF SUCH UNSA CONDITIONS EXIST UPON INSPECTION. 8. THE COMPANY RESERVES THE RIGHT UPON INSPECTION ' "RED TAG" ANY UNIT IT DETERMINES TO BE A UNSAFE UNIT (SAFE' HAZARD). THE PROPERTYOWNER OF SUCH UNIT WILL BE IMMEDIATE: NOTIFIED AND THE UNIT SHUT DOWN (POWER TURNED OFF). IT IS Tt RESPONSIBILITY OF THE PROPERTY OWNER TO AUTHORIZE TI NECESSARY REPAIRS, REPLACE THE DEFECTIVE UNIT OR LEAVE TI UNIT SHUT OFF. MONTOUR SHALL BE HELD HARMLESS FROM A~ INJURY OR PROPERTY DAMAGE THAT MAY RESULT AFTER THE UN IS SHUT OFF. 9. THE COMPANY WARRANTS THAT ALL SERVICES PERFORMED Ak PARTS INSTALLED BY IT SHALL BE IN A GOOD AND WORKMANLI~ MANNER, WARRANTED AND FIT FOR THE PARTICULAR INTENDED US, COMPANY SHALL SE LIABLE SOLELY FOR REPAIR TO THE COVERE EQUIPMENT. UNDER NO CIRCUMSTANCES SHALL THE COMPANY E LIABLE FOR ANY CONSEQUENTIAL OR RESULTANT DAMAGES O INJURY (INCLUDING DEATH) TO PERSONS OR PROPERTY, NOR FO DAMAGES RESULTING FROM DEFECTIVE EQUIPMENT, OR FOR LOS OR DAMAGE RESULTING FROM OPERATION OR NON-OPERATION © SAID EQUIPMENT, DELAYS IN PERFORMING SERVICE, MAKING REPAIR OR INSTALLATION OF PARTS, BECAUSE OF STRIKES, ACCIDENT.~ EXPLOSIONS, SHORTAGES, OR OTHER CONDITIONS BEYOND TH CONTROL OF THE COMPANY. 10. THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT OF TH' PARTIES HERETO AND THERE ARE NO PROMISES, TERMS, CONDITION: OR OBLIGATIONS OTHER THAN PRINTED HEREIN. 11. NO SPECIAL PRICING OR DISCOUNTS CAN BE APPLIED TO PART~ PLAN. 12. NON-EMERGENCY CALLS, AT DISCRETION OF COMPANY, O! SATURDAYS AND SUNDAYS, HOLIDAYS AND NIGHTS (5:00 P.M. TO 7.~ A.M.) WILL BE INVOICED AT THE PREVAlUNG HOURLY RATE. 13. SPECIAL ORDERED PARTS ARE NOT COVERED UNDER THE AGREEMENT AND WILL BE INVOICED ACCORDINGLY. VERIFICATION We, SCOTT C. DIETZ and TINA MA-RIE DIETZ, hereby acknowledge that we are the Plaintiffs in this action; that we have read the foregoing document; and that the facts stated therein are true and correct to the best of our knowledge, information and belief. We understand that any false statements herein are made subject to penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. Tina Marie Dietz Date: 72364.1 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-00682 P .COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DIETZ SCOTT C ET AL VS MONTOUR OIL SERVICE COMPANY R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: MONTOUR OIL SERVICE COMPANY but was unable to locate Them deputized the sheriff of DAUPHIN in his bailiwick. He therefore County, Pennsylvania, to serve the within COMPLAINT & NOTICE On February 26th , 2002 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin County 29.25 .00 66.25 02/26/2002 So answers: R.'Thomas Kline Sheriff of Cumberland County GOLDBERG KATZMAN SHIPMAN Sworn and subscribed to before me this ]~/~ day of ~ ~&w3~ A.D. ~ t Prothonotary ' Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin Sheriff's Return No. 0354-T OTHER COUNTY NO. DIETZ SCOTT C MONTOUR OIL SERVICES COMPANY AND NOW:February 19, 2002 COMPLAINT MONTOUR OIL SERVICES COMPA/qY to JAMES CLARK, OFFICE MANAGER of the original -2002 02-682 at ll:00AMserved the within upon by personally banding i true attested copy(les) COMPLAINT and making known to him/her the contents thereof at 40TH AND DERRY ST HBG, PA 17111-0000 Sworn and subscribed to before me this 20TH day of FEBRUARY, 2002 PROTHONOTARY SO Answers, Sheriff of Da.~_~ph~ Pa. Sheriff's Costs:S0.00 PD 00/00/0000 RCPT NO TORO In The Court of Common Pleas of Cumberland County, Pennsylvania Scott C. Dietz et al VS. Montour Oil Service Cu,,pany SERVE: s~ne 02 682 civil No. Now, FebruarY 11, 2002 ., I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Now~ within Affidavit of Service ,20 ,at o'clock M. served the upon by handing to and made known to copy of the original ~O arlswers~ the contents thereof. Sworn and subscribed before me this __ day of ,20 Sheriff of County, PA COSTS SERVICE Mil ,EAGE AFFIDAVIT LAW OFFICES OF JOHN F. FOX, JR. BY: JOHN F. FOX, JR. Identification No. 31854 2 Penn Center Plaza - #1310 Philadelphia, PA 19102 (215) 568-6868 Attorney for Defendant, Montour Oil Service Company SCOTT C. DIETZ and TINA MARIE DIETZ Plaintiffs VS. MONTOUR OIL SERVICE COMPANY : COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW No. 02-682 CIVIL TERM JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendant Montour Oil Service Company in the above-captioned matter. LAW OFFICES OF JOHN F. FOX, JR. Date: By: J~(n F. Fox, Jr., Es4u~ Attorney for Defendant Montour Oil Service Company LAW OFFICES OF JOHN F. FOX, JR. BY: JOHN F. FOX, JR. Identification No. 31854 2 Penn Center Plaza - #1310 Philadelphia, PA 19102 (215) 568-6868 SCOTT C. DIETZ and TINA MARIE DIETZ Plaintiffs VS. MONTOUR OIL SERVICE COMPANY : Attorney for Defendant, Montour Oil Service Company COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW No. 02-682 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD TO PLAINTIFFS: SCOTT C. DIETZ and TINA MARIE DIETZ You are hereby notified to plead to the enclosed New Matter Crossclaim within twenty (20) days of service hereof or default judgrnent may be entered against you. LAW OFFICES OF JOHN F. FOX, JR. Date: By: gilman F. Fox, Jr.j ~quire Attorney for Defendant Montour Oil Service Company LAW OFFICES OF JOHN F. FOX, JR. BY: JOHN F. FOX, JR. Identification No. 31854 2 Penn Center Plaza - #1310 Philadelphia, PA 19102 (215) 568-6868 SCOTT C. DIETZ and TINA MARIE DIETZ Plaintiffs VSo MONTOUR OIL SERVICE COMPANY : Attorney for Defendant, Montour Oil Service Company COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW No. 02-682 CIVIL TERM JURY TRIAL DEMANDED DEFENDANT MONTOUR OIL SERVICE COMPANY'S ANSWER TO PLAINTIFFS' COMPLAINT WITH NEW MATTER Defendant Montour Oil Service Company, hereinafter referred to as "Montour", by and through its undersigned counsel, hereby answers Plaintiffs' Complaint with New Matter as follows: 1. Denied. After reasonable investigation, Montour is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 1 of Plaintiffs' Complaint and accordingly, the said averments are deemed denied. Strict proof thereof, if material, is demanded at the trial of this cause. 2. Denied. At, er reasonable investigation, Montour is without knowledge or information sufficient to form a belief as to the troth of the averments contained in paragraph 2 of Plaintiffs' Complaint and accordingly, the said averments are deemed denied. Strict proof thereof, if material, is demanded at the trial of this cause. 3. Admitted. 4. Admitted. 5. Admitted. 6. Paragraph 6 of Plaintiffs' Complaint refers to a writing which speaks for itself. Strict proof thereof, if material, is demanded at the trial of this cause. 7. Paragraph 7 of Plaintiffs' Complaint refers to a writing which speaks for itself. Strict proof thereof, if material, is demanded at the trial of this cause. Strict proof thereof, if material, is demanded at the trial of this came. 8. Admitted. 9. Denied. After reasonable investigation, Montour is without knowledge or information sufficient to form a belief as to the troth of the averments contained in paragraph 9 of Plaintiffs' Complaint and accordingly, the said averments are deemed denied. Strict proof thereof, if material, is demanded at the trial of this cause. 10. Denied. Montour denies that the alleged puff-back was directly and proximately caused by Montour's negligence and breach of contract. On the contrary, Plaintiffs' damages, if any, were caused solely by Plaintiffs' own negligence and carelessness and/or that of third parties over whom Montour had no control. Strict proof thereof, if material, is demanded at the trial of this cause. COUNT I 11. Montour incorporates by reference its answers to paragraphs 1 through 10 inclusive of Plaintiffs' Complaint as if fully set forth herein at length. 12. Montour admits that Plaintiffs and Montour had entered into a residential service contract. Montour further admits that said contract provided for at least one me-up/cleaning of Plaintiffs' heating system per calendar year. To the extent that paragraph 12 of Plaintiffs' Complaint implies that Montour's alleged failure to undertake a tune-up/cleaning of Plaintiffs' heating system caused Plaintiffs' damages, it is denied. On the contrary, Plaintiffs' damages, if any, were caused solely by Plaintiffs' own carelessness, negligence and/or that of third parties over whom Montour had no control. Strict proof thereof, if material, is demanded at the trial of this cause. 13. Admitted. 14. Admitted in part. Denied in part. Montour admits that it failed to provide a tune- up/cleaning within the calendar year. Montour denies that said failure to provide a tune-up/cleaning within the calendar year caused Plaintiffs' damages. On the contrary, Plaintiffs' damages, if any, were caused solely by Plaintiffs' own carelessness, negligence and/or that of third parties over whom Montour had no control. Strict proof thereof, if material, is demanded at the trial of this cause. 15. Denied. Montour denies that a two year period existed wherein Montour received payment but did not provide the required service. Strict proof thereof, if material, is demanded at the trial of this cause. 16. Denied. The allegations contained in paragraph 16 (a) through (g) inclusive of Plaintiffs' Complaint are deemed denied and are at issue pursuant to the Pennsylvania Rules of Civil Procedure. By way of further answer, Montour denies that Plaintiffs' damages, if any, were as a direct result of Montour's alleged breach of the service contract. On the contrary, Plaintiffs' damages, if any, were caused solely by Plaintiffs' own carelessness, negligence and/or that of third parties over whom Montour had no control. Strict proof thereof, if material, is demanded at the trial of this cause. 17. Admitted in part. Denied in part. It is admitted that Plaintiffs did not prevent Montour from fulfilling its obligations under the contract. Montour denies that Plaintiffs' damages, if any, were related and/or caused by Montour's alleged failure in performing an annual tune-up/cleaning of the heating system. By way of further answer, Plaintiffs' damages, if any, were caused solely by Plaintiffs' own carelessness, negligence and/or that of third parties over whom Montour had no control. By way of further answer, Plaintiffs were negligent in failing to notify Montour that Montour did not perform the annual me-up/cleaning. Strict proof thereof, if material, is demanded at the trial of this cause. WHEREFORE, Defendant Montour Oil Service Company requests that Plaintiffs' Complaint be dismissed and that all costs, attorneys' fees and all other appropriate relief be assessed against Plaintiffs Scott C. Dietz and Tina Made Dietz and in favor of Defendant Montour Oil Service Company. COUNT II 18. Montour incorporates by reference its answers to paragraphs 1 through 17 inclusive of Plaintiffs' Complaint as if fully set forth herein at length. 19. (a)-(c). Denied. The allegations contained in paragraph 19 (a) through (c) inclusive of Plaintiffs' Complaint are deemed denied and are at issue pursuant to the Pennsylvania Rules of Civil Procedure. By way of further answer, Montour denies each and every subpart of paragraph 19. By way of further answer, Montour denies that the alleged puff-back was directly and proximately caused by Montour's negligence. On the contrary, Plaintiffs' damages, if any, were caused solely by Plaintiffs' own carelessness, negligence and/or that of third parties over whom Montour had no control. Strict proof thereof, if material, is demanded at the trial of this cause. 20. Denied. The allegations contained in paragraph 20 of Plaintiffs' Complaint are deemed denied and are at issue pursuant to the Pennsylvania Rules of Civil Procedure. On the contrary, Plaintiffs' damages, if any, were caused solely by Plaintiffs' own carelessness, negligence and/or that of third parties over whom Montour had no control. Strict proof thereof, if material, is demanded at the trial of this cause. 21. Denied. The allegations contained in paragraph 21 (a) through (g) inclusive of Plaintiffs' Complaint are deemed denied and are at issue pursuant to the Pennsylvania Rules of Civil Procedure. By way of further answer, Montour denies that Plaintiffs' damages, if any, were as a direct and proximate result of Montour's negligence. On the contrary, Plaintiffs' damages, if any, were caused solely by Plaintiffs' own carelessness, negligence and/or that of third parties over whom Montour had no control. By way of further answer and after reasonable investigation, Montour is without knowledge or information sufficient to form a belief as to the troth of the remaining averments contained in paragraph 21 of Plaintiffs' Complaint and accordingly, the said averments are deemed denied. Strict proof therenf, if material, is demanded at the trial of this cause. W}IEREFORE, Defendant Montour Oil Service Company requests that Plaintiffs' Complaint be dismissed and that all costs, attorneys' fees and all other appropriate relief be assessed against Plaintiffs Scott C. Dietz and Tina Made Dietz and in favor of Defendant Montour Oil Service Company. NEW MATTER 22. Plaintiffs have failed to state a cause of action upon which rehef can be granted. 23. Plaintiffs' claims are barred by the applicable statute of limitations. 24. Plaintiffs Scott C. Dietz and Tina Made Dietz knew of the existence of the condition or situation, if any, as pleaded in their Complaint, yet they assumed the risk. 25. Plaintiffs' claims are barred or limited by the provisions of the Comparative Negligence Statute, 42 Pa. C.S.A. §7102, the provisions of which are incorporated by reference as if fully set forth herein at length. 26. Plaintiffs Scott C. Dietz and Tina Made Dietz's alleged damages, if any, were caused by the acts and/or omissions of third-parties over whom Montour had no control. WHEREFORE, Defendant Montour Oil Service Company requests that Plaintiffs' Complaint be dismissed and that all costs, attorney's fees and all other appropriate relief be assessed against Plaintiffs Scott C. Dietz and Tina Marie Dietz and in favor of Defendant Montour Oil Service Company. LAW OFFICES OF JOHN F. FOX, JR. By: Jo~ F. Fox, Jr., Esqtttre Attorney for Defendant Montour Oil Service Company VERIFICATION I, Tish DeCecco, state that I am employed by Sunoco, Inc. (R&M), an affiliate company of Defendant Montour Oil Service Company, as a Pamlegal and therefore am authorized to make this verification on behalf of defendant Sunoco, Inc. (R&M). I am informed and therefore aver that the statements made in defendant Montour Oil Service Company's Answer to Plaintiffs' Complaint with New Matter are based upon information and records of defendant furnished to me by others and are true and correct to the best of my knowledge, information and belief. I understand that the statements contained in said pleading are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. TISH DECECCO Date: LAW OFFICES OF JOHN F. FOX, JR. BY: JOHN F. FOX, JR. Identification No. 31854 2 Penn Center Plaza - #1310 Philadelphia, PA 19102 (215) 568-6868 SCOTT C. D1ETZ and TINA MARIE DIETZ Plaintiffs VS. MONTOUR OIL SERVICE COMPANY Attorney for Defendant, Montour Oil Service Company COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW No. 02-682 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, JOHN F. FOX, ESQUIRE, hereby certifies that a true and correct copy of Defendant Montour Oil Service Company's Answer to Plaintiffs' Complaint with New Matter was served upon counsel listed below by Regular First-Class United States Mail, postage prepaid this 12th day ofApfil, 2002. John R. Ninosky, Esquire Goldberg Katzman & Shipman 320 Market Street P.O. Box 1268 Harrisburg, Pa 17108-1268 LAW OFFICES OF JOHN F. FOX, JR. Date: By: John ~x, Jr., Esquire Attorney for Defendant Montour Oil Service Company John R. Ninosky, Esquire Attorney I. D. No. 78000 GOLDBERG, KATZMAN & SHIPMAN, ?.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs SCOTT C. DIETZ and TINA MARIE DIETZ, 401 Diehl Road Mechanicsburg, PA 17055 Plaintiffs VS. MONTOUR OIL SERVICE COMPANY 40th and Derry Streets Harrisburg, PA 17111 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.02-652 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER AND NOW, come the Plaintiffs, by and through their counsel, Goldberg, Katzman and Shipman, P.C.,who fi'le this Reply to New Matter by respectfully stating the following: 22. Denied. To the contrary, Plaintiffs have stated a cause of action upon which relief should be granted. 23. Denied. It is specifically denied that the Plaintiffs' claims are barred by the applicable statue of limitations. 24. Denied. The averments in this paragraph contain conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 25. Denied. The averments in this paragraph contain conclusions of law and fact to which no response is required. If a response is deemed to be required, the averments contained therein are specifically denied. 26. Denied. The averments in this paragraph contain conclusions of law and fact to which no response is required. If the averments contained a response is deemed to be required, therein are specifically denied. WHEREFORE, Defendant. 78227.1 Plaintiffs demand judgment against the Respectfully submitted, GOLDBERG, KATZMAN & SHIPMA/~, P.C. John~. Ninosky, Esquire Attorney I. D. No. 78000 P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiffs _VERIFICATION We, SCOTT C. DIETZ and TINA MARIE DIETZ, hereby acknowledge that we are the Plaintiffs in this action; that we have read the foregoing document; and that the facts stated therein are true and correct to the best of our knowledge, information and belief. We understand that any false statements herein are made relating to subject to penalties of 18 Pa. C. S. Section 4904, unsworn falsification to authorities. Date: 72364.1 ~tt C. Dietz Tina Marie Dietz CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid on the ~_ day of ~. , 2002, addressed to the following: John F. Fox, Jr., Esquire 2 Penn Center Plaza - #1310 Philadelphia, PA 19120 GOLDBERG, KATZMAN & SHIPMAN, P.C. Jo~4~ R. Ninosky, Esqui%e P.O. Box 1268 Harrisburg, PA 17108 Attorneys for Plaintiff Telephone: (717) 234-4261 78231