Loading...
HomeMy WebLinkAbout04-6539 o IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., AS SUBROGEE OF RICHARD MARLIN AND KAREN MARLIN, CIVIL ACTION NO.: CASE NO.: 0 y. (,,5' 39 C;.;J -r;_ Plaintiff, v. AMERIGAS, and EMPIRE COMFORT SYSTEMS, Defendants. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMA nON ABOUT AGENCIES THAT MA Y OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 717/240-6200 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., AS SUBROGEE OF RICHARD MARLIN AND KAREN MARLIN, CIVIL ACTION NO.: CASE NO.: Plaintiff, v. AMERIGAS, and EMPIRE COMFORT SYSTEMS, Defendants. AVISO USTED HA S1DO DEMANDADOIA EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que si usted fana de tomar acci6n como se describe anteriormente, el caso puede pro ceder sin usted y un fano por cualquier suma de dinero rec1amada en la demanda 0 cualquier otra reclamaci6n 0 remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. U sted puede perder dinero 0 propiedad u otros derechos importantes para usted. USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO INMED1A T AMENTE. S1 USTED NO TIENE UN ABOGADO, LLAME 0 V A Y A A LA SIGUIENTE OFICINA. EST A OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. S1 USTED NO PUEDE PAGAR POR LOS SERVIC10S DE UN ABOGADO, ES POSIBLE QUE EST A OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERV1CIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, P A 17013 717/240-6200 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA STATE FARM INSURANCE CO., AS SUBROGEE of RICHARD MARLIN and KARIN MARLIN Plaintiff, CIVIL ACTION CASE NO.: 0'1- (,~6q ~-r:- (Arbitration Division) v. AMERIGAS, and EMPIRE COMFORT SYSTEMS, Defendants. COMPLAINT AND NOW comes the Plaintiff, State Farm Insurance Company, as subrogee of Richard and Karin Marlin, by and through its counsel, Patricia Haas Corll, Esquire and the law firm of Weber Gallagher Simpson Stapleton Fires & Newby LLP, and files the following Complaint: 1. Plaintiff, State Farm Insurance Company, is a company issuing basic fire and casualty insurance policies in the Commonwealth of Pennsylvania maintaining a principle place of business in Concordville, Pennsylvania. State Farm is entitled by law and equity to bring this action by virtue of an insurance payment made to Richard and Karin Marlin, as described in more detail below. 2. Plaintiff insured the property located at 604 Cocklin Street, Mechanicsburg, Pennsylvania, for Richard and Karin Marlin (hereinafter, "Mr. And Mrs Marlin"). 3. Defendant, Amerigas (hereinafter "Amerigas") is a company with a business location of 6823 Paxton Street, Harrisburg, Dauphin County, Pennsylvania. Defendant Amerigas is in the business of installing, inspecting, servicing, repairing gas log heater systems and otherwise providing gas log heater services to customers such as Mr. and Mrs. Marlin 4. Defendant, Empire Comfort Systems, Inc. (hereinafter "Empire") has a principle place of business at 918 Freeburg Avenue, Belleville, Illinois 62222-0529; and is in the business of manufacturing or otherwise supplying gas log heater systems and/or their component parts to be sold into the residential market in the Commonwealth of Pennsylvania. 5. At all times relevant hereto, Mr. and Mrs. Marlin were the owner/occupier of real property in the nature of a residence at 604 Cocklin Street, Mechanicsburg, Pennsylvania, which was insured under a State Farm policy. 6. In January 2003, this residence contained a Empire gas log heater, model number VFYR24S0 manufactured by Empire and distributed for sale in Pennsylvania by Columbia Propane, the precursor entity to Amerigas. This system was purchased at Columbia Propane and installed by a representative of Columbia Propane on or about November 9,2000. 7. On or about January 4,2003, the Marlins noticed soot emanating from the Empire gas log heater. The Marlins contacted Columbia Propane, now doing business under the name Amerigas, and a representative of Amerigas, came to the residence to correct the sooting problem. The Amerigas representative found very noticeable soot on the walls of the home. The Amerigas representative then determined to change out the regulator on the Empire gas log heater in an effort to correct the problem the Marlins were experiencing. 8. Despite the repairs done by the Amerigas representative on January 18, 2003, on or about January 27, 2003, the Marlins experienced a smoke and soot blow back into their residence causing damage to their real and personal property. 9. A representative, agent, servant or employee of Defendant Amerigas arrived to service the gas log heater unit on or about February 18, 2003. He found that the unit was sooting again and the 2 burner was too low of the glass in the burner. The service representative requested that the Marlins obtain another gas log heater unit due to the "various" problems with the unit. The Amerigas representative also pulled the regulator from the unit. 10. Accordingly, it is alleged that the Empire gas log heater was not properly manufactured, installed or serviced, causing the aforementioned problems. 11. As a direct and proximate result of the above actions by the Defendants, Mr. and Mrs. Marlin incurred damages in the amount of Thirteen Thousand Five Hundred and Ninety Dollars and Eighty Nine Cents ($13,590.89). Pursuant to its policy of insurance with Mr. and Mrs. Marlin, Plaintiff paid to its insureds the sum of Thirteen Thousand Ninety Dollars and Eighty Nine Cents ($13,090.89). By virtue of this payment, State Farm became subrogated to the rights of its insureds, Mr. and Mrs. Marlin, and it is entitled by law and equity to proceed herein. COUNT I Negligence Plaintiffv. Defendant Amerigas 12. Plaintiffs incorporate paragraphs 1 through 11 of this Complaint by reference as if the same were set forth herein in full. 13. Defendant, Amerigas was the entity responsible for installing, inspecting, servicing, adjusting, cleaning, tuning, testing, repairing and maintaining the gas log heater systems service to Mr. and Mrs. Marlin. Indeed, on or about January 18, 2003, an Amerigas representative came to the Marlin residence due to complaints of a sooting problem. The Amerigas representative found very noticeable soot on the walls ofthe home. The Amerigas representative then determined to change out 3 the regulator on the Empire gas log heater to correct the problem the Marlins were experiencing. This repair work was done negligently causing, or not preventing, a smoke and soot blow back into the Marlin residence which occurred approximately ten days later. 14. Defendant Amerigas failed to perform work properly on the gas log heater system in January of2003. As a direct and proximate result ofthe negligence of Defendant Amerigas, generally and in the following particulars, Plaintiff suffered the damages as more specifically described in the preceding paragraphs of this Complaint: a) in failing to hire competent agents, servants, employees, or technicians; b) in failing to install, repair, inspect, service, adjust, clean, tune up, test, repair, maintain and/or otherwise check the gas log heating system in a proper and workmanlike manner; and; c) in installing, pulling or replacing parts on the system or the system itself in a manner inconsistent with the instructions issued by the manufacturer. 15. As a direct and proximate result of Defendant Amerigas' negligence, Plaintiff sustained the losses and damages set forth in the previous paragraphs of this Complaint. WHEREFORE, Plaintiff demands judgment against Defendant Amerigas in the amount of Thirteen Thousand Five Hundred and Ninety Dollars and Eighty Nine Cents ($13,590.89), plus interest and costs. 4 COUNT II Strict Liability Plaintiffv. Defendant Empire Comfort Systems 16. Plaintiffs incorporate paragraphs 1 through 15 of this Complaint by reference as if the same were set forth herein in full. 17. At the time of the original design, manufacture, distribution, sale, maintenance and/or delivery of the gas log heater, Defendant Empire knew or had reason to know that the unit would be used by Mr. and Mrs. Marlin, or others similarly situated as the ultimate users or consumer would use such a unit. The unit as designed, manufactured, distributed, sold, maintained and/or delivered was defective and not reasonably safe for their intended and foreseeable use: a) the regulator was defective in the nozzle and the burner could be set incorrectly causing a soot blowback; b) the unit was improperly designed such that normal usage of a gas log heater in a room with a cold air return or ceiling fan could cause the flames to be pushed back into the logs of the heater causing sooting. 18. The gas log heater was expected to be used by Mr. and Mrs. Marlin and was used by Mr. and Mrs Marlin without substantial change and substantially in the condition in which it was designed, manufactured, distributed, sold, maintained, delivered and or installed. 19. Mr. and Mrs Marlin used the system in a foreseeable manner. 20. Defendant Burnham, by distributing, selling, maintaining and/or delivering the system in a defective condition dangerous to the users thereof, such as Plaintiffs, is strictly liable for the injuries and damages resulting from the use of said system. 5 21. As a direct and proximate result of Defendant Empire's strict liability, Plaintiff sustained the losses and damages set forth in previous paragraphs of this Complaint. WHEREFORE, Plaintiff demands judgment against Defendant Empire in the amount of Thirteen Thousand Five Hundred and Ninety Dollars and Eighty Nine Cents ($13,590.89), plus interest and costs. COUNT III Breach of Warranty Plaintiff v. Defendant Empire 22. Plaintiff incorporates paragraphs 1 through 21 of this Complaint by reference as if the same were set forth herein in full. 23. Mr. and Mrs. Marlin were relying on the skill and judgment of Defendant Empire to distribute, sell and place into the stream of commerce gas log heating systems that were appropriately designed to prevent them from being set in a manner which would allow the excess soot to be generated causing smoke damage to their home. 24. For the reasons set forth above, the gas log heating system or its component parts were not fit for the ordinary purpose for which such goods are used, nor for the particular purpose for which the system was placed in the Marlin residence. 25. Defendant Empire is liable for breach of express warranties, and for breach of implied warranties of merchantability and fitness for a particular purpose. 26. As a direct and proximate result of Defendant Empires' breach of said express and implied warranties, Plaintiff sustained the losses and damages set forth in the previous paragraphs of this Complaint. 6 WHEREFORE, Plaintiff demands judgment against Defendant Empire in the amount of Thirteen Thousand Five Hundred and Ninety Dollars and Eighty Nine Cents ($13,590.89, plus interest and costs. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & P DeCemberyf-004 t lcia Haas Corll, Esquire A Supreme Ct. ID#59238 00 North Third Street, Second Floor Harrisburg, P A 17102 Telephone: (717) 237-6940 Counsel for Plaintiff 7 VERIFlCA TlON The averments or denials of fact contained in the foregoing are true based upon the signer's personal knowledge information or belief. lfthe foregoing contains averments which are inconsistent in fact, signer has been unable to ascertain which of the statements are true, but signer has no knowledge or information sufficient to form a belief that one of them is untrue. Pursuant to Pa. R.C.P. 1024, this verification is being taken by signer, rather than a party because, time is of the essence and the party is outside the jurisdiction of the court. This verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn falsification to authorities. Dated: December F2004 .. J' () ~ ~ r-; c:.:::.c:) fT;~\ -c- ~ C:J ":-I -- r"l :r::n ~ ~ :2~ c-, 171 r==. 8 .~...- (~ -0 f!J F (, '::U CJ o<'S ........ V'\ ""T;l =;:1 -1', c." c- :Ji: ,') :D ~ '" "'.-C) -- (,)m 0.,., ~ ~':> -,~ ~ ~-i ':~~ ~ r...n '(.... ~ --.J ~ - -<: '- e SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 Suite 1900 Philadelphia, Pennsylvania 19102 (215) 563-9811 Fax (215) 557-0999 Attorney for: DEFENDANT, EMPIRE COMFORT SYSTEMS, INC. STATE FARM INSURANCE CO., AS SUBROGEE OF RICHARD MARLIN AND KAREN MARLIN COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. AMERIGAS and EMPIRE COMFORT SYSTEMS, INC. NO. 04-6539 ENTRY OF APPEARANCE AND DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, EMPIRE COMFORT SYSTEMS, INC., in the above captioned matter. Defendant requests a Jury at the time of trial in this matter. SWEENEY & SHEEHAN ~ By: 1. L~ J, Michael Kunsch DATE: JANUARY 25,2005 ---------- to.__"l <.<:;' ",:,_,C> U' '- :;:~ ~~ N -' -r:; :,};: () .';"1 ::;1-n en p:: -cr~n ":_\')0 t) )~\ ~~.:~\ ~~~ ":;\''1\ f'.,-? o 0" :,,:,~ '1 TO: ALL PARTIES SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No, 61922 Suite 1900 ISIS Market Street Philadelphia, Pennsylvania 19102 (215) 563-9811 Fax (215) 557-0999 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTERlCROSSCLAIM WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR A DEF AUL T JUDGMENT MAY BE ENTERED AGAINST YOU. Attorney for: DEFENDANT, EMPIRE COMFORT SYSTEMS, INC. STATE FARM INSURANCE CO., AS SUBROGEE OF RICHARD MARLIN AND KAREN MARLIN COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. AMERlGAS and EMPIRE COMFORT SYSTEMS, INC, NO. 04-6539 ANSWER OF DEFENDANT, EMPIRE COMFORT SYSTEMS, INC., TO PLAINTIFFS' COMPLAINT TOGETHER WITH NEW MATTER AND NEW MATTER PURSUANT TO PA. R.C.P. 2252(d) IN THE NATURE OF A CROSSCLAIM AGAINST DEFENDANT. AMERlGAS 1. Denied. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 2. Denied. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 3. The averments of this paragraph relate to a Defendant other than Answering Defendant and no answer is required. 4. Admitted. 5. Denied. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 6. Admitted in part; denied in part. It is admitted that Empire Comfort Systems, Inc. manufactures gas log heaters, including a Model Number VFYR-24S0-1 gas log heater. The remaining averments of this paragraph are denied in that, after reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments. By way of further response, the remaining averments are denied as conclusions of law to which no responsive pleading is required, 7. Denied. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response, 8. Denied. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 9. Denied. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response, 10. Denied. This averment constitutes a conclusion of law requiring no answer. By way of further response, it is specifically denied that the Empire gas log heater was not properly manufactured. 11. Denied. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. WHEREFORE, Answering Defendant demands judgment be entered in its favor, and against Plaintiff, together with all reasonable interest, expenses, counsel fees, and costs. COUNT I - NEGLIGENCE PLAINTIFF v. DEFENDANT. AMERIGAS 12, Answering Defendant incorporates by reference Paragraphs 1 through 11 hereof as though more fully set forth herein at length. 13. The averments of this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 14. The averments of this paragraph relate to a Defendant other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. 15. The averments of this paragraph relate to a Defendant other than Answering Defendant and no answer is required, To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. WHEREFORE, Answering Defendant demands judgment be entered in its favor, and against Plaintiff, together with all reasonable interest, expenses, counsel fees, and costs. COUNT II - STRICT LIABILITY PLAINTIFF v. DEFENDANT, EMPIRE COMFORT SYSTEMS 16. Answering Defendant incorporates by reference Paragraphs 1 through 15 hereof as though more fully set forth herein at length. 17. Denied. This averment constitutes a conclusion of law requiring no answer. By way of further response, it is specifically denied that the Empire gas log heater was defective and/or not reasonably safe for its intended and foreseeable use. By way of further response, it is specifically denied that: (a) The regulator was defective in the nozzle and the burner could be set incorrectly causing a soot blowback; and/or, (b) The unit was improperly designed such that normal usage of a gas log heater in a room with a cold air return or ceiling fan could cause the flames to be pushed back into the logs of the heater causing sooting. 18. Denied, After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. 19. Denied. This averment constitutes a conclusion of law requiring no answer. 20. The averments contained in this paragraph relate to an entity other than Answering Defendant and no answer is required. To the extent the averments contained in this paragraph relate to Answering Defendant, they are denied as conclusions of law. By way of further answer, it is specifically denied that any product manufactured and sold by Empire Comfort Systems, Inc. was defective. 21. Denied, After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requiring no response. WHEREFORE, Answering Defendant demands judgment be entered in its favor, and against Plaintiff, together with all reasonable interest, expenses, counsel fees, and costs. COUNT III - BREACH OF WARRANTY PLAINTIFF v. DEFENDANT, EMPIRE COMFORT SYSTEMS 22. Answering Defendant incorporates by reference Paragraphs 1 through 21 hereof as though more fully set forth herein at length, 23. Denied. After reasonable investigation, Answering Defendant is without information sufficient to affirm or deny the averments of this paragraph and strict proof is demanded at time of trial. For further answer, these averments constitute conclusions of law requlflng no response. 24. Denied. This averment constitutes a conclusion of law requiring no answer. By way of further answer, it is specifically denied that the Empire gas log heating system and/or its component parts were not fit for the ordinary purposes for which they are used and/or the particular purpose for which the system was placed in the Marlin residence. 25. Denied, This averment constitutes a conclusion oflaw requiring no answer. It is specifically denied that Answering Defendant is liable to any party. By way of further response, it is specifically denied that Answering Defendant breached any warranties. 26. Denied, This averment constitutes a conclusion of law requiring no answer. By way of further answer, it is specifically denied that Answering Defendant breached any warranties. WHEREFORE, Answering Defendant demands judgment be entered in its favor, and against Plaintiff, together with all reasonable interest, expenses, counsel fees, and costs. NEW MATTER 27. Plaintiffs Complaint fails to state a cause of action upon which relief can be granted. 28. The provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S,A S7102, et seq, apply in this case to limit or bar Plaintiffs cause of action. 29. Plaintiff assumed the risk of its own conduct. 30. Plaintiffs cause of action is barred by the applicable Statute of Limitations. 31. Plaintiffs injuries, if any, were caused by the negligence and/or liability producing acts or omissions of parties or other entities over whom Answering Defendant neither has control nor the ability to control. 32. Plaintiffs claims for relief are barred and/or limited as the product at issue was the subject of misuse, abuse and/or abnormal use. 33. Plaintiffs claims for relief are barred and/or limited as the product at issue was modified, altered and/or changed such that the product at issue no longer constitutes a product at issue. Therefore, Defendant cannot be liable for Plaintiffs claims for relief. 34. At all times relevant hereto, Answering Defendant exercised due care in the design, manufacture and sale of the product allegedly at issue, 35. Plaintiffs claims for relief are barred and/or limited as Plaintiffs own actions or inactions were the cause-in-fact and/or legal cause of their alleged damages. 36, The acts and/or omissions of entities and/or individuals other than Defendant were the cause-in-fact and/or legal cause of Plaintiffs alleged injuries. 37. Plaintiff has failed to mitigate its damages. 38. The acts and/or omissions of Answering Defendant, if any, were not a substantial contributing factor to the alleged damages of Plaintiff. 39. Plaintiffs claims are barred by spoliation of evidence. 40. The product at issue complies with all Federal and State statues, laws and regulations regarding design, manufacture, labeling and warning. Therefore, Plaintiffs claims for relief should be barred and/or limited. 41. Plaintiffs claims for relief are barred and/or limited by the provisions of the Pennsylvania Commercial Code 13 Pol. C.S. Sections 1101, et seg. 42. Plaintiff s claims for relief are barred and/or limited by virtue of any and all Releases executed prior to during the pendency of the instant litigation. 43. Answering Defendant breached no duty of care owed to Plaintiffs, if any. 44. Plaintiffs claims are barred and/or limited by the Doctrine of Waiver, Laches and/or Estoppel. 45. Answering Defendant extended no implied warranty to Plaintiff. 46. If a warranty was extended by Answering Defendant, said warranty is limited expressly to the terms and conditions specifically set forth in a written warranty. 47. Plaintiffs breach of warranty claim must fail for lack of notice, 48. Plaintiffs breach of warranty claim must fail for lack of privity. 49. Plaintiffs claim is barred in that any warranties were defectively disclaimed, limited or modified, 50. Answering Defendant made no representations and/or warranties to Plaintiff. 51. Plaintiff did not rely upon any representations andlor warranties made by Answering Defendant regarding the product at issue. 52. Any reliance by Plaintiff upon any representation and/or warranty made by Answering Defendant was not reasonable andlor not justified. 53. Answering Defendant had no contract with Plaintiff. 54. Answering Defendant breached no contract it had with Plaintiff, if any. WHEREFORE, Answering Defendant demands judgment be entered in its favor, and against the Plaintiff, together with all reasonable interest, expenses, counsel fees and costs. NEW MATTER PURSUANT TO PA. R.C.P. 2252(d) IN THE NATURE OF A CROSSCLAIM AGAINST DEFENDANT. AMERIGAS 55. If the allegations of Plaintiffs Complaint are shown to be true, any negligence or liability on the part of Defendant, Empire Comfort Systems, Inc., being expressly denied, then the Defendant, Amerigas, is primarily liable therefor, and is liable over to Defendant, Empire Comfort Systems, Inc., by way of indemnity for any amounts which the said Defendant might be required to pay Plaintiff; or, in the alternative, Defendant, Amerigas, is liable to Defendant, Empire Comfort Systems, Inc., for contribution. WHEREFORE, Answering Defendant, Empire Comfort Systems, Inc., demands judgment of indemnity against Defendant, Amerigas, for all sums which Answering Defendant may be required to pay Plaintiff, or, in the alternative, for contribution. SWEENEY & SHEEHAN ~ t a By: ,~ : Michael Kunsch DATE: FEBRUARY 3, 2005 VERIFICATION JOHN DAVIS verifies and says that he is authorized to make this Verification on behalf of Defendant, EMPIRE COMFORT SYSTEMS, INC., and that the facts set forth in the foregoing ANSWER OF DEFENDANT, EMPIRE COMFORT SYSTEMS, INC., TO PLAINTIFFS' COMPLAINT TOGETHER WITH NEW MATTER AND NEW MATTER PURSUANT TO PA. R.C.P. 2252(d) IN THE NATURE OF A CROSS CLAIM AGAINST DEFENDANT, AMERIGAS are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 P A, C,S. Section 4904 relating to unsworn falsification to authorities. '~. 41/ . John Davi DATE: 1- d- lr 65- SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No.6 I 922 Suite 1900 Philadelphia, Pennsylvania 19102 (2 I 5) 563-98 II Fax (2 I 5) 557-0999 Attorney for: DEFENDANT, EMPIRE COMFORT SYSTEMS, INC. STATE FARM INSURANCE CO., AS SUBROGEE OF RICHARD MARLIN AND KAREN MARLIN COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v, AMERIGAS and EMPIRE COMFORT SYSTEMS, INC. NO, 04-6539 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within ANSWER OF DEFENDANT, EMPIRE COMFORT SYSTEMS, INC., TO PLAINTIFFS' COMPLAINT TOGETHER WITH NEW MATTER AND NEW MATTER PURSUANT TO PA. R.C.P. 2252(d) IN THE NATURE OF A CROSSCLAIM AGAINST DEFENDANT, AMERIGAS was made on February 3, 2005 to all counsel of record and unrepresented parties by United States First Class Mail, postage prepaid, SWEENEY & SHEEHAN By: Q~'~l~ ~:unsch ~c" ~ ~'" ..."(' :, r.~r (..... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee OF RICHARD AND KAREN MARLIN, Plaintiff, CIVIL ACTION - LAW v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants, JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE PURSL'ANT TO Pa.R.c.P. 1012 TO THE PROTHONOTARY: Kindly enter the appearance of Robert A. Lerman, Esquire and Michael B. Scheib, Esquire of Griffith, Strickler, Lerman, Solymos & Calkins, as attorneys for Defendant, Amerigas, in the above- captioned matter and mark the docket accordingly. CKLER, LERMAN, SOL YMOS & S BY: BY: lJ1.tJ.itJ. SlAv/:' MICHAEL B. SCHEIB, ESQUIRE I,D. #63868 110 South Northern Way York,PA 17402 717-757-7602 Attorneys for Defendant, Amerigas Dated: February 7,2005 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO" as Subrogee OF RICHARD AND KAREN MARLIN, Plaintiff, v. AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants. CIVIL ACTION - LAW NO, 04-6539 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 7'h day of February, 2005, I, Robert A. Lerman, Esquire, a member ofthe firm ofGRlFFlTH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have this date served a copy ofthe Praecipe for Entry of Appearance, by United States Mail, addressed to the party or attorney of record as follows: Patricia Haas Corll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LP 800 N. Third Street, 2nd Floor Harrisburg, P A 171 02 (Counsel for Plaintiffs) klr/amerigas-prp J. Michael Kunsch, Esquire Sweeney & Sheehan 1515 Market Street, 19th Floor Philadelphia, P A 19102 (Counsel for Defendant, Empire Comfort Systems) /1 / I GRIFfl~~~CKLER lli7';OL":& BY: lU.JA -:t A. ~/ ~RMAN, ESQUIRE LD, #07490 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 Attorney for Defendant, Amerigas . \ ....i~. 0::1 01 \''=' ~ --- . ; IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., AS SUBROGEE of RlCHARD MARLIN and KARIN MARLIN Plaintiff, CIVIL ACTION CASE NO.: 04-6539 (Arbitration Division) v. AMERlGAS, and EMPIRE COMFORT SYSTEMS, Defendants. ANSWER TO NEW MATTER OF DEFENDANT. EMPIRE COMFORT SYSTEMS. INC. AND NOW comes the Plaintiff, State Farm Insurance Company, as subrogee of Richard and Karin Marlin, by and through its cowlsel, Patricia Haas Corll, Esquire and the law firm of Weber Gallagher Simpson Stapleton Fires & Newby LLP, and files the following Answer to New Matter of Defendant, Empire Comfort Systems, Inc.: 27. Denied. This averment constitutes a conclusion oflaw requiring no answer. To the extent that an answer is required, it is specifically denied the Plaintiffs Complaint fails to state a cause of action upon which relief can be granted. 28. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is averred that the provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C. S ,A. S 7102, et sea. do not apply in this case to limit or bar Plaintiff s cause of action. 29. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is specifically denied that Plaintiff asswned the risk of its own conduct. . 30, Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is specifically denied that Plaintiffs cause of action is barred by the applicable Statute of Limitations. 31. Denied, This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is averred that Plaintiffs injuries were not caused by the negligence and/or liability producing acts or omissions of parties or other entities over whom Answering Defendant neither has control nor the ability to control as set forth in Plaintiffs Complaint. 32. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is averred that Plaintiffs claims for relief are not barred and/or limited as the product at issue was the subject of misuse, abuse and/or abnormal use. 33. Denied. This averment constitutes a conclusion oflaw requiring no answer, By way offurther answer, it is specifically denied that Plaintiffs claims for relief are barred and/or limited as the product at issue was modified, altered and/or changed such that the product at issue no longer constitutes a product at issue. 34. Denied. By way of further answer, Plaintiff incorporates its Compliant against the Answering Defendant, Empire Comfort Systems, Inc., as if set forth more fully herein, 35, Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is specifically denied the Plaintiffs for relief are barred and/or limited as plaintiffs own actions or inactions were the cause-in-fact and/or legal cause of their alleged damages. 36. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is specifically denied that the acts and/or omissions of entities and/or individuals 2 other than Defendant were the cause-in-fact and/or legal cause of Plaintiff s alleged injuries. By way of further answer, Plaintiff incorporates its Complaint. 37. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is specifically denied that the Plaintiff has failed to mitigate its damages. 38, Denied, This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is specifically denied that the acts and/or omissions of Answering Defendant, Empire Comfort Systems, Inc., was not a substantial contributing factor to the alleged damages of Plaintiff To the contrary, see Plaintiffs Complaint. 39. Denied, This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is specifically denied that the Plaintiffs claims are barred by spoliation of evidence. 40. Denied, This averment constitutes a conclusion of law requiring no answer. It is specifically denied that Plaintiffs claims for relief should be barred and/or limited due to Empire Comfort Systems, Inc.'s allegation that the property at issue complies with all Federal and State statutes, laws and regulations regarding design, manufacture, labeling and warning. Strict proof at time of trial is demanded. 41. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is averred that the Plaintiffs claims for relief are not barred and/or limited by the provisions of the Pennsylvania Commercial Code 13 Pa. C.S. Sections 1011, et seq. 42. Denied. This averment constitutes a conclusion oflaw requiring no answer. To the contrary, it is averred that Plaintiffs claims for relief are not barred and/or limited by virtue of any and 3 all Releases executed prior to during the pendency of the instant litigation. Strict proof at time of trial is demanded. 43, Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is averred that Empire Comfort Systems, Inc. breached the duties owned to Plaintiffs as set forth in its Complaint which is incorporated by reference as if set for more fully herein. 44. Denied. The averments of paragraph 44 constitute a conclusion oflaw requiring no answer. By way offurther answer, it is denied that Plaintiff's claims are barred and/or limited by the Doctrine of Waiver, Laches and/or Estoppel. 45. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer it is expressly denied that Empire Comfort Systems, Inc. extended no implied warranty to Plaintiff. Strict proof at time of trial is demanded. 46, Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is specifically averred that Empire Comfort Systems, Inc. did not limit the warranties provided to Plaintiff. Further, Plaintiff incorporates its Complaint by reference as if set forth in full herein. 47. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is averred that Plaintiff's breach of warranty claim must not fail for lack of notice, 48. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is specifically denied that Plaintiff's breach of warranty claim fails for lack of privity. 4 49. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is specifically denied that Plaintiff's claim is barred in that any warranties were defectively disclaimed, limited or modified. Strict proof at time of trial is demanded. 50, Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is specifically denied that Answering Defendant made no representations and/or warranties to Plaintiff. 51. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, the Plaintiff incorporates its Complaint as if set forth more fully herein. 52. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way offurther answer, it is averred that reliance by Plaintiff upon any representation and/or warranty made by Defendant, Empire Comfort Systems, Inc. was justified and reasonable, 53. Denied. This averment constitutes a conclusion oflaw requiring no answer. By way of further answer, it is averred that the Answering Defendant had a contract with Plaintiff's subrogee, as set forth in the Complaint. 54, Denied. This averment constitutes a conclusion oflaw requiring no answer. By way offurther answer, it is averred that Defendant Empire Comfort Systems, Inc, breached the contracts it had with Plaintiff's subrogees. WHEREFORE, Plaintiff demands judgment be entered in its favor and against Defendant, Empire Comfort Systems, Inc, together with all reasonable interest, costs, counsel fees and expenses, 5 and any and all such further relief as this Honorable Court deems appropriate, Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES &/NEWm) LLP By I. ~ P tri a Haas Carll, Esquire P S preme Ct. 10#59238 80 orth Third Street, Second Floor H isburg, P A 17102 j February .*-, 2005 ) Telephone: (717) 237-6940 Counsel for Plaintiff 6 CERTIFICATE OF SERVICE I, Patricia Haas Corll, Esquire, hereby certifY that service of a true and correct copy of the fO~ing _Answer To New Matter Of Defendant, Empire Comfort Systems, Inc, was served this c/-I~;;:ay of February, 2005, to all counsel of record and unrepresented parties by U.S. First Class Mail, postage prepaid as follows: 1. Michael Kunsch, Esquire Sweeney & Sheehan 19th Floor, 1515 Market Street Philadelphia, PA 19102-1983 Michael B. Scheib, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402-3737 Weber Gallagher Simpson Stapleton Fires & Newby, LljP I By: /"';r ./atricia Haas Corll, Equire l_ 7 "P :::; :j/ """- ~ ...., "" os ...~ v:> -0 :> ..s: --- CJ -------------- . . . SHERIFFIS RETURN ~ OUT OF COUNTY CASE NO: 2004~06539 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STATE FARM INSURANCE CO VS AMERIGAS ET AL 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: AMERIGAS but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On January 19th , 2005 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin Co 18.00 9.00 10.00 31.25 .00 68.25 01/19/2005 WEBER & GALLAGHER So answers; .~;~. ~.... ~7- R. 'Thomas Kl ine( Sheriff of Cumberland County Sworn and subscribed to before me '1 thiS:'! U2- day of c;~ ;i..U1J5 A.D. I . ~ () YhA.fIJ,,-, ;f;;; Prothonotary .. In The Court of Common Pleas of Cumberland County, Pennsylvania State Farm Insurance Co Arnerigas VS. No. 04-6539 civil Now, January 4, 2005 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~~. 4'/ ;f/~? -,,- .. #/ .+:,-" ~ ~ ~..~~~ ~/~~_K~.,;R Sheriff of Cumberland County, PA Affidavit of Service Now, ,20 ,at o'clock M. served the within upon at by handing to copy of the original a and made known to the contents thereof. So answers, Sheriff of County, P A Sworn and subscribed before me this day of , 20 COSTS SERVICE MILEAGE AFFIDAVIT $ " J> . . @iiite of fltp ~4P:riff William T. Tully Solicitor J. Daniel Basile Chief Deputy Mary Jane Snyder Real Estate Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 1710 1 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania STATE FARM INSURANCE CO vs County of Dauphin AMERIGAS Sheriff's Return No. 0034-T - -2005 OTHER COUNTY NO. 04 6539 AND NOW:January 13, 2005 at 11:35AM served the within NOTICE & COMPLAINT upon AMERIGAS by personally handing to DENNIS MCMASTR, DISTRICT MANAGER 1 true attested copy(ies) of the original NOTICE & COMPLAINT and making known to him/her the contents thereof at 6823 PAXTON STREET HARRISBURG, PA 17111-0000 NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. I, 2006 jf~ Shep;::;:Ln~ By Deputy Sheriff Sheriff's Costs:$31.25 PD 01/05/2005 RCPT NO 202855 Sworn and subscribed to before me this 13TH day of JANUARY, 2005 ~~ HOPKINS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff v. AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants NO. 04-6539 JURY TRIAL DEMAN ED NOTICE TO PLEAD To: State Farm Insurance Co., as Subrogee of Richard and Karen Marlin clo Patricia Haas Carll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LP 800 N. Third Street, 2nd Floor Harrisburg, PA 17102 Empire Comfort Systems c/o: J. Michael Kunsch, Esquire Sweeney & Sheehan 19th Floor - 1515 Market Street Philadelphia, PA 19102-1983 You are hereby notified to file a written response to the enclosed Ans New Matter within twenty (20) days from service hereof or a judgment may b entered against you. BY: GRIFFITH, STRICKLER, LE SOL YMOS & CALKINS ( '.. I '.' /1 ' 'k?_ ; I ! tA 10../ I .;:;'! iJA./) M C AEL B. SCHEIB ESQ I E Attorney for Defendant Ameri as Supreme Court 1.0. #63868 110 South Northern Way York, Pennsylvania 17402 Telephone: (717) 757-7602 N THE COURT OF COMMON PLEAS OF CUMBERLAND COUN PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LA v. NO. 04.6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMAN ED ANSWER WITH NEW MATTER OF DEFENDANT AMERIGAS COME NOW, Defendant, Amerigas, by and through its attorneys, GRI FITH, STRICKLER, LERMAN, SOL YMOS & CALKINS and Michael B. Scheib, Esq ire, and responds to the allegations in Plaintiff's Complaint as follows: 1. Denied. After reasonable investigation, answering Defendant i without knowledge or information sufficient to form a belief as to the truth of the alleg tions set forth in paragraph no. 1 of Plaintiff's Complaint and same are denied and stri t proof thereof is demanded, 2. Denied. After reasonable investigation, answering Defendant i without knowledge or information sufficient to form a belief as to the truth of the alleg tions set forth in paragraph no. 2 of Plaintiff's Complaint and same are denied and stri t proof thereof is demanded. 3. Admitted in part and denied in part, It is admitted that Defenda t is located at said address. The remaining allegations are denied. After reason ble investigation, answering Defendant is without knowledge or information suffici nt to form a belief as to the truth of the allegations set forth in paragraph no, 3 of laintiff's Complaint and same are denied and strict proof thereof is demanded. 4. Denied. After reasonable investigation, answering Defendant i without knowledge or information sufficient to form a belief as to the truth of the alleg tions set forth in paragraph no. 4 of Plaintiff's Complaint and same are denied and stri t proof thereof is demanded. 5. Denied, After reasonable investigation, answering Defendant i without knowledge or information sufficient to form a belief as to the truth of the alleg tions set forth in paragraph no. 5 of Plaintiff's Complaint and same are denied and str ct proof thereof is demanded. 6. Denied, After reasonable investigation, answering Defendant i without knowledge or information sufficient to form a belief as to the truth of the alleg forth in paragraph no. 6 of Plaintiff's Complaint and same are denied and stri proof thereof is demanded. 7. Admitted in part and denied in part, It is admitted that a repres met with Plaintiffs in January, 2003, The remaining allegations are denied. reasonable investigation, answering Defendant is without knowledge or infor sufficient to form a belief as to the truth of the allegations set forth in paragra Plaintiff's Complaint and same are denied and strict proof thereof is demande . 8. Denied. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the alleg forth in paragraph no. 8 of Plaintiff's Complaint and same are denied and stri proof thereof is demanded. 9. Admitted in part and denied in part. It is admitted that a represl ntative met with Plaintiffs in February, 2003. The remaining allegations are denied. After reasonable investigation, answering Defendant is without knowledge or inforl ation sufficient to form a belief as to the truth of the allegations set forth in paragra h no. 9 of Plaintiffs Complaint and same are denied and strict proof thereof is demand d. 10. Denied. After reasonable investigation, answering Defendant i without knowledge or information sufficient to form a belief as to the truth of the alleg tions set forth in paragraph no. 10 of Plaintiff's Complaint and same are denied and st 'ct proof thereof is demanded, 11. Denied. After reasonable investigation, answering Defendant i without knowledge or information sufficient to form a belief as to the truth of the alleg tions set forth in paragraph no. 11 of Plaintiffs Complaint and same are denied and st ict proof thereof is demanded. COUNT I - NEGLIGENCE State Farm Insurance Co. as Subro ee of Richard and Karen Ma lin v. Defendant Ameriaas 12. Paragraphs 1 through 11 of Defendant's Answer with New Matt incorporated herein as though fully set forth at length. 13. Admitted in part and denied in part. It is admitted that a represe met with Plaintiffs in January, 2003. The remaining allegations are denied. A er reasonable investigation, answering Defendant is without knowledge or infor sufficient to form a belief as to the truth of the allegations set forth in paragra , no. 13 of Plaintiffs Complaint and same are denied and strict proof thereof is deman ed, 14. Denied. This paragraph states a legal conclusion to which no response is required. It is specifically denied that Defendant Amerigas was egligent by a, Failing to hire competent agents, servants, employees, r technicians; b. Failing to install, repair, inspect, service, adjust, clean, tu e up, test, repair, maintain and/or otherwise check the gas log heating system in a prop rand workmanlike manner; and c. Installing, pulling or replacing parts on the system or in te system itself in a manner inconsistent wit the instruction issued by the manufacturer. On the contrary, and at all times relevant, Defendant acted in a lawful, careful, safe, and prudent manner and with due care as required by the circumstanc s. 15. Denied. This paragraph states a legal conclusion to which no r sponse is required. To the extent that a response is required, the allegations are denie After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set fort in paragraph no, 15 of Plaintiffs Complaint and same are denied and strict pro thereof is demanded, WHEREFORE, Defendant Amerigas respectfully requests this Honora Ie Court to enter judgment in its favor together with the costs of this lawsuit. COUNT II - STRICT LIABILITY State Farm Insurance Co. as Subro ee of Richard and Karen Ma in v. Defendant Empire Comfort Systems 16 - 21. This Count is directed at a different Defendant. Answering Def dant is not required to respond to it. COUNT III BREACH OF WARRANTY State Farm Insurance Co. as Subro ee of Richard and Karen M v. Defendant Empire Comfort Systems --, 22 - 26. This Count is directed at a different Defendant. Answering De ndant is not required to respond to it. BY WAY OF FURTHER DEFENSE: NEW MATTER 27. Paragraph 1 through 26 of Defendant's Answer with New Matt rare incorporated herein as if fully set forth at length, 28, Plaintiff's damages, if any, were caused by the acts and omissi ns of a third party over whom Defendant had no control. 29, Plaintiff's damages, if any, were caused by poor maintenance. 30. Plaintiff's damages, if any, were caused by events which either or post-dated the subject of this lawsuit. 31, Plaintiffs have signed the Gas Log Rider who provides that the has no liability. 32, Plaintiff's Complaint fails to state a cause of action upon which lief can be granted. 33. Plaintiff's Complaint may be barred by the doctrine of release. 34. Plaintiff's Complaint may be barred by the doctrine of immunity rom suit, and/or estoppel. 35. Plaintiff's Complaint may be barred by their contributory neglige ce or assumption of the risk. .- I 36, Plaintiff's Complaint may be barred by the applicable Statute 0 Limitations, 37. Plaintiff's Complaint may be barred because Plaintiffs have ta pered with the product, misused the product, or failed to follow the manufacturer's instr ctions for the product. 38. Plaintiff's Complaint may be barred by the Doctrine of Waiver nd/or Laches. 39. Plaintiff's Complaint may be barred because they used the inc rrect or improper log set. 40. Plaintiff's Complaint is barred by the Doctrine of Spoliation of E idence. 41, Defendant Amerigas did not install the gas log, 42. Defendant Amerigas did not sell the gas log to Plaintiffs. 43. Defendant Amerigas did not purchase the liabilities of Columbi WHEREFORE, Defendant Amerigas respectfully requests this Honora Ie Court to enter judgment in its favor together with the costs of this lawsuit. NEW MATTER PURSUANT TO 2252(d} DIRECTED AT DEFENDANT EMPIRE COMFORT SYSTEMS IN 44. Paragraphs 1 through 43 of Defendant's Answer with New Matt rare incorporated herein as if fully set forth at length. 45. In the event of a finding of liability against Defendant Amerigas, hich liability is denied, Defendant Amerigas hereby asserts against Defendant Em ire Comfort Systems, any and all rights that it has for contributions and/or indem ,ification. 46. In the event of a finding of liability against Defendant Amerigas, hich liability is denied, Defendant Amerigas hereby asserts that Defendant Empire Comfort Systems is solely liable, jointly and severably liable, or liable over to for Plai iffs' injuries. WHEREFORE, Defendant Amerigas respectfully requests this Honor ble Court to enter judgment in its favor together with the costs of this lawsuit. GRIFFITH, STRICKLER, LERMAN,. SOL YMOS & CALKINS BY: 1MJroJJJ MICHAEL B, SCHEIB, ESQUIRE Attorney for Defendant Amerigas Supreme Court 1.0. No. 63868 110 South Northern Way York, Pennsylvania 17402-3737 Telephone: (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN Y, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LA v. NO. 04.6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMAN ED VERiFiCATiON I, JAMES M. CROSSAN, AIC, ARM, verify that I am the Defendant in'the foregoing action and that the attached Reply of Defendant Amerigas to the w Matter Pursuant to Pa. RC.P. 2252 (d) is based upon the information which has be n gathered by me, my counsel and/or others on my behalf in preparation of the defense f this lawsuit. The language of the Reply of Defendant Amerigas to the New Matt Pursuant to Pa, RC.P, 2252 (d) is that of counsel and is not mine. I have read the Re Iyof Defendant Amerigas to the New Matter Pursuant to Pa. RC.P, 2252 (d), and to the extent that it is based upon information which I have given to my counsel, is t ue and correct to the best of my knowledge, information and belief. To the extent th t the contents of the Reply of Defendant Arnerigas to the New Matter Pursuant to a. RC.P. , 2252 (d) are that of counsel and/or others on my behalf, I have relied upon t m in making this Verification. I understand that intentional false statements herein are made subject to the penalties of 18 Pa,C.S. S4904 relating to unsworn falsifications made to auth rities. Cf\ ctc 0.1-4 I JA ES M, CROSSAN, AIC, ARM '-.senior Risk Analyst IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN Y, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVil ACTION - lA v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMAN ED nct CERTIFICATE OF SERVICE AND NOW, this~ day of March, 2005, I, Michael B. Scheib, Esquire, member of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, h reby certify that I have this date served a copy of the Answer with New Matter, by United States Mail, addressed to the party or attorney of record as follows: Patricia Haas Corll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LP 800 N. Third Street, 2nd Floor Harrisburg, PA 17102 J. Michael Kunsch, Esquire Sweeney & Sheehan 19th Floor-1515 Market Street Philadelphia, PA 19102-1983 GRIFFITH, STRICKLER, LE SOL YMOS & CALKIN 7 I / / I BY: (J MICH:A. L . SCHEIB, ESQU REi Attorney 1.0. No. 63868 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 Attorney for Defendant, Amer as c'! ~., c? .._.M) .-,i~ ~ "',.AI ::? I..' A -", (") -n .-1 -:::t" In?.::;, -,-,;;'1 -'1' 'J J (, .' - ~-~ ""'Ci ) c'") -"" ,1\ (.) C) -, .\ 'p" ~~ .' .- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN PENNSYLVANIA CIVIL ACTION - LAW STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff v. AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants NO. 04-6539 JURY TRIAL DEMAN ED REPLY OF DEFENDANT AMERIGAS TO THE NEW MATTER PURSUANT TO Pa. R.C.P. 2252 d OF DEFENDANT EMPIRE COMFORT YSTEMS 55, Denied. This paragraph states a legal conclusion to which no r sponse is required. To the extent that a response is required, the allegations are denie . After reasonable investigation, answering Defendant is without knowledge or infor ation sufficient to form a belief as to the truth of the allegations set forth in paragra h no. 55 of Plaintiffs' Complaint and same are denied and strict proof thereof is dema ded. WHEREFORE, Defendant Amerigas respectfully requests this Honora Ie Court to enter judgment in its favor, together with the costs of this lawsuit. BY: GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS ?il' MI HAEL B, SCHEIB, E Q Attorney for Amerigas Supreme Court J.D. No, 63868 110 South Northern Way York, Pennsylvania 17402-3737 Telephone: (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LAW v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMAN ED VERIFICATION I, MICHAEL B. SCHEIB, Esquire, do hereby verify that I am the ttorney of record for the pleading party herein, and that the facts set forth in the foregoi g pleading are true to the best of my knowledge, information and belief, upon informatio supplied. I understand that false statements made herein are made subject to th penalties of 18 Pa,C.SA ~ 4904 relating to unsworn falsification to authorities. By: GRIFFITH, STRICKLER, LER SOL YMOS & CALKINS ^ 1 A I { Ii l ijttv-uY 1Y'j~h? MIC AEL B, SCHEIB, ESQUI E Supreme Court I.D. #63868 Attorney for Defendant Amerig s 110 South Northern Way York, PA 17402 Telephone (717) 757-7602 , . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN Y, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LA v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMAN ED d CERTIFICATE OF SERVICE ~ f, AND NOW, thisf,'fday of March, 2005, I, Michael B, Scheib, Esquire, member of the firm of GRIFFITH, STRICKLER, lERMAN, SOL YMOS & CALKINS, he eby certify that I have this date served a copy of the Reply of Defendant Amerigas to th New Matter Pursuant to Pa. R.C.P, 2252 (d), by United States Mail, addressed to t e party or attorney of record as follows: J. Michael Kunsch, Esquire Sweeney & Sheehan 19th Floor - 1515 Market Street Philadelphia, PA 19102-1983 Patricia Haas Carll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, lP 800 N. Third Street, 2nd Floor Harrisburg, PA 17102 GRIFFITH, STRICKLER, lERMAN, BY SOLYM{:rPi~~! MICHAEL B. SCHEIB, ESQ E Attorney 1.0. No. 63868 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 Attorney for Defendant, Amerig s ,,' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNT , PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff ! CIVIL ACTION - LAW v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT ------- ---- - -------gYSTEMS; Defendants ~ ----.-. -----------------..-- --..------- JURY TRIAL DEMAN . ED REPLY OF DEFENDANT AMERIGAS TO THE NEW MATTER PURSUANT TO Pa. R.C.P. 2252 d OF DEFENDANT EMPIRE COMFORT YSTEMS 55, Denied. This paragraph states a legal conclusion to which no r sponse is required, To the extent that a response is required, the allegations are denie . After reasonable investigation, answering Defendant is without knowledge or infor ation sufficient to form a belief as to the truth of the allegations set forth in paragra h no. 55 of Plaintiffs' Complaint and same are denied and strict proof thereof is dema ded. WHEREFORE, Defendant Amerigas respectfully requests this Honora Ie Court to enter judgment in its favor, together with the costs of this lawsuit. GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS BY: 1 . 1 I !~ I; . i (} Ai MI HAEL B. SCHEIB, E Attorney for Amerigas Supreme Court I.D. No. 63868 110 South Northern Way York, Pennsylvania 17402-3737 Telephone: (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT .---.--~:VS'TEMS,------- --------... Defendants VERIFICATION . . .._-_...~-_. -;- JURY TRIAL DEMAN ED i il ii " i I, MICHAEL B. SCHEIB, Esquire, do hereby verify that I am the attorney of record for the pleading party herein, and that the facts set forth in the foregoi g pleading are true to the best of my knowledge, information and belief, upon informati n supplied. I understand that false statements made herein are made subject to t e penalties of 18 Pa.C.SA S 4904 relating to unsworn falsification to authorities. By: GRIFFITH, STRICKLER, lE MAN, SOL YMOS & CALKINS ;' j . llttf~f r&. i~ MICHAEL B. SCHEIB, ESQ IRE Supreme Court 1.0. #63868 Attorney for Defendant Ame gas 110 South Northern Way York, PA 17402 Telephone (717) 757-7602 . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN Y, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LA v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT ----- SYSTEMS-,-- _______n____ , ..____..... ._.____._~..i! JURY TRIAL DEMAN ED I , d CERTIFICATE OF SERVICE I " ft AND NOW, thi;h~day of March, 2005, I, Michael B. Scheib, Esquire, a member Defendants of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, h reby certify that I have this date served a copy of the Reply of Defendant Amerigas to th New Matter Pursuant to Pa. R.C.P. 2252 (d), by United States Mail, addressed to the party or attorney of record as follows: J. Michael Kunsch, Esquire Sweeney & Sheehan 19t11 Floor - 1515 Market Street Philadelphia, PA 19102-1983 Patricia Haas Corll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LP 800 N. Third Street, 2nd Floor Harrisburg, PA 17102 GRIFFITH, STRICKLER, LERMAN BY SOl~:j7liJJ. t MICHAEL B. SCHEIB, ESQ RE Attorney 1.0. No. 63868 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 Attorney for Defendant, Am rigas C" ""' .. .' ".:-,.1 , " ..;:) ~:i 0>1 . ..... ';":..0' I ;;..,/ j' , , ('.) <.J:;' .'-.' , J _..~ ~":J (. " ''''- c,.". SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 Suite 1900 Philadelphia, Pennsylvania 19102 (215) 563-9811 Fax (215) 557-0999 Attorney for: DEFENDANT, EMPIRE COMFORT SYSTEMS, INC. . STATE FARM INSURANCE CO., AS SUBROGEE OF RICHARD MARLIN AND KAREN MARLIN COURT OF CpMMOI\ PLEAS OF CUMBERIlAND 0 UNTY v. AMERIGAS and EMPIRE COMFORT SYSTEMS, INC. NO. 04-6539 REPLY OF DEFENDANT, EMPIRE COMFORT SYSTEM~, INC., 0 THE NEW MATTER PURSUANT TO 2252(dl OF DEFENDANf. AME IGAS , 44. Denied. This averment constitutes a conclusion of law reqiJiring no nswer. By way of further answer, Defendant, Empire Comfort Systems, Inc., hereb~ incorpo tes by reference its Answer to Plaintiffs Complaint Together with New Matter and Cross laim as though more fully set forth herein at length. 45. Denied. This averment constitutes a conclusion of law requiring no nswer. By way of further response, it is specifically denied that Empire Comfort Syslems, Inc. is liable to any party. II i 46. Denied. This averment constitutes a conclusion of law requiring no answer. By way of further response, it is specifically denied that Empire Comfort Systems, In . is liable to any party. WHEREFORE, Answering Defendant, Empire Comfort Systems, Inc., he eby demands judgment be entered in its favor, together with all reasonable interest, ex enses, counsel fees and costs. SWEENEY & SHEEHAN By: "'-^ DATE: MARCH 28,2005 I .. I . ! I i i SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 Suite 1900 Philadelphia, Pennsylvania 19102 i (215) 563-9811 I Fax (215) 557-0999 Attorney for: DEFENDANT, EMPIRE COMFORT SYSTEMS, INC. STATE FARM INSURANCE CO., COURT OF COMMON PLEAS AS SUBROGEE OF RICHARD MARLIN OF CUMBERLAND CC UNTY AND KAREN MARLIN v. AMERIGAS and EMPIRE COMFORT SYSTEMS, INC. NO. 04-6539 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within REPL "OF DEFENDANT, EMPIRE COMFORT SYSTEMS, INC., TO THE NEW MAT" ER PURSUANT TO 2252(d) OF DEFENDANT, AMERIGAS, was made on March 2 , 2005 to all counsel ofrecord and unrepresented parties by United States First Class Mail, pos age prepaid. SWEENEY & SHEEHAN r\ By: r.. ~ L J/\.A \J. Michael Kunsch '-. . . .. VERIFICATION J. MICHAEL KUNSCH verifies and says that he is an attorney-at-law in th offices of SWEENEY & SHEEHAN; that he is authorized to make this Verification; and, t at the facts set forth in the foregoing REPLY OF DEFENDANT, EMPIRE COMFORT SYS INC., TO THE NEW MATTER PURSUANT TO 2252(d) OF DEFENDANT, A ERIGAS, are true and correct to the best of his knowledge, information and belief This statement is made subject to the penalties of 18 P A. C.S. Section 4904 r lating to unsworn falsification to authorities. J. Michael Kunsch DATE: MARCH 28, 2005 (") t,:-~, -:1' t~~?\ -\ ->"\~ '"".l .(\--<,- , .0 c: --- ~, ""- .;:; IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA STATE FARM INSURANCE CO., AS SUBROGEE of RICHARD MARLIN and KARIN MARLIN Plaintiff, CIVIL ACTION CASE NO.: 04-6539 (Arbitration Division) v. AMERIGAS, and EMPIRE COMFORT SYSTEMS, Defendants. ANSWER TO NEW MATTER OF DEFENDANT, AMERIGAS AND NOW comes the Plaintiff, State Farm Insurance Company, as subrogee of Richard and Karin Marlin, by and through its counsel, Patricia Haas Corll, Esquire and the law firm of Weber Gallagher Simpson Stapleton Fires & Newby LLP, and files the following Answer to New Matter of Defendant, Amerigas, averring as follows: 27. Paragraphs 1 through 26 of the Plaintifs Complaint are hereby incorporated by reference as if set forth more fully here. 28. The allegations contained within Paragraph #28 of Defendant's New Matter constitute legal conclusions to which no responsive pleading is required. To the extent that a responsive pleading is required, Plaintiff incorporates Counts II and III of its Complaint as if set forth more fully herein. 29. Denied. It is denied that Plaintiff s damages were caused by poor maintenance by the Plaintiffs, Richard and Karen Marlin. Strict proof at time of trial is demanded. 1 . 30. The allegations contained within Paragraph #30 of Defendant's New Matter are denied as conclusions oflaw to which no responsive pleading is required. 31. Denied. It is denied that Plaintiffs have signed any Gas Log Rider which insulated the company from liability in this case. 32. The allegations contained within Paragraph #32 of Defendant's New Matter constitute legal conclusions to which no responsive pleading is required. To the extent that a response is required, it is denied that Plaintiffs Complaint fails to state a cause of action upon which relief can be granted. 33. The allegations contained within Paragraph #33 of Defendant's New Matter constitute conclusions of law to which no responsive pleading is required. To the extent that a response is required, it is denied that Plaintiffs Complaint is barred by the doctrine of release. 34. The allegations contained within Paragraph #34 of the Defendant's New Matter constitute conclusions of law to which no responsive pleading is required. To the extent that a response is required, it is denied that Plaintiffs Complaint is barred by the doctrine of immunity from suit, and/or estoppel. 35. The allegations contained within Paragraph #35 of Defendant's New Matter constitute conclusions of law to which no responsive pleading is required. To the extent that a response is required, it is denied that that Plaintiffs Complaint is barred by contributory negligence or assumption of the risk. 36. The allegations contained within Paragraph #36 of Defendant's New Matter constitute conclusions of law to which no responsive pleading is required. To the extent that a 2 , response is required, it is denied that Plaintiffs Complaint is barred by the applicable Statute of Limitations. 37. The allegations contained in Paragraph #37 of the Defendant's New Matter constitute conclusions of law to which no responsive pleading is required. To the extent that a response is deemed necessary, it is denied the Plaintiffs Complaint is barred because the Plaintiffs have tampered with the product, misused the product, or failed to follow the manufacturer's instructions for the product. Strict proof at time of trial is demanded. 38. The allegations contained in Paragraph #38 of the Defendant's New Matter constitute conclusions of law to which no responsive pleading is required. To the extent that a response is deemed necessary, it is denied that Plaintiff's Complaint is barred by the Doctrine of Waiver and/or Laches. 39. Denied. It is denied that Plaintiffs used the incorrect or improper log set. By way of further answer, the allegations contained within Counts Nos. I and II of Plaintiffs Complaint are incorporated herein as if set forth more fully herein. 40. The allegations contained within Paragraph #40 of the Defendant's New Matter constitute conclusions of law to which no responsive pleading is required. To the extent that a response is required, it is denied that Plaintiffs Complaint is barred by the Doctrine of Spoliation of Evidence. 41. Denied. Plaintiffs' incorporate the allegations of their Complaint. 42. Denied. Plaintiffs' incorporate the allegations of their Complaint. 43. The allegations contained within Paragraph #43 of the Defendant's New Matter constitute conclusions of law to which no responsive pleading is required. To the extent that a 3 responsive pleading is required, it is denied that Defendant Amerigas did not become responsible for the liabilities of or was successor in interest to Columbia Propane, as they held themselves out to be the same entity. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment in their favor, together with the costs of this lawsuit against Defendant Amerigas, and any and all further relief as this Honorable Court deems just and proper. 44. The allegations contained within Paragraph #44 of Defendant Amerigas' New Matter are directed to another Defendant and not to this party, therefore no answer is required. 45. The allegations contained within Paragraph #45 of Defendant Amerigas' New Matter are directed to another Defendant and not to this party, therefore no answer is required. 46. The allegations contained within Paragraph #46 of Defendant Amerigas' New Matter are directed to another Defendant and not to this party, therefore no answer is required. WHEREFORE, Plaintiffs respectfully request this Honorable Court enter judgment in their favor. Respectfully submitted, PSON STAPLETON By April8, 2005 me Ct. ID#59238 orth Third Street, Second Floor j arrisburg,PAl7102 ,~ Telephone: (717) 237-6940 Counsel for Plaintiff 4 , CERTIFICATE OF SERVICE I, Patricia Haas Corti, Esquire, hereby certifY that of a true and correct copy of the foregoing Answer To New Matter Of Defendant, Amerigas was served this 8th day of April, 2005, to all counsel of record and unrepresented parties by u.s. First Class Mail, postage prepaid as follows: 1. Michael Kunsch, Esquire Sweeney & Sheehan 19th Floor, 1515 Market Street Philadelphia, PA 19102-1983 Michael B. Scheib, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402-3737 Weber Gallagher Simpson Stapleton Fires & Newby By: s=:. ~' (,) _i f'.J 'r:J' ~o....". .~'\j -;U ..- ..- ,,,...) ':;--('\ ~^! -.. - -------- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LAW v. NO. 04.6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMANDED :\\ CERTIFICATE OF SERVICE AND NOW, thi~Sbay of April, 2005, I, Michael B. Scheib, Esquire, a member of ~he firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have this date served a copy of the Interrogatories of Defendant Amerigas Ibirected to Plaintiff - Set 2, by United States Mail, addressed to the party or attorney of , , ~cord as follows: Patricia Haas Corll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LP 800 N. Third Street, 2nd Floor Harrisburg, PA 17102 J. Michael Kunsch, Esquire Sweeney & Sheehan 19t11 Floor - 1515 Market Street Philadelphia, PA 19102-1983 D~te: t+t~(; 0:S BY: GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKI S ^ , I" '1 'I '~ I. /I . [. J r MICHA B. SCHEIB, ESQUI E Supreme Court 1.0. No. 63868 Attorney for Defendant, Amerigas 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 ~ c.-"> en ~ :;:.: ~ ~ -' 1:....,., {"r1 t;, :?lC) "~"?~~? .', -h (;?~~ ~ .~ '<:;-1 ::<:. ""C:.> ;:..,. -"'" C;? <J1 CO - I N ;) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LAW v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, thi~~ay of April, 2005, I, Michael B. Scheib, Esquire, a member of ~he firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have this date served a copy of the Request for Production of Documents, by \Jnited States Mail, addressed to the party or attorney of record as follows: Patricia Haas Corll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LP 800 N. Third Street, 2nd Floor Harrisburg, PA 17102 J. Michael Kunsch, Esquire Sweeney & Sheehan 19th Floor - 1515 Market Street Philadelphia, PA 19102-1983 Date: }~ 6~ BY: GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKIN , '1 r, , . /I . . .. ,{; .. y v ~ MIC A L B. SCHEIB, ESQUIRE Supreme Court 1.0. No. 63868 Attorney for Defendant, Amerigas 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 ~ if. -~ :t,.... '-" \ ...., Q, ..-\ --r:-;p ff\r-:: :~,~ ':::<\.~\ .', ~'11 ,;---.. ?;~,~-'A .~:~; c:;") .;:~ <? v:> u:> - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LAW v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMANDED I CERTIFICATE OF SERVICE .r/..,rl(,~ AND NOW, thi~ day of April, 2005, I, Michael B. Scheib, Esquire, a member of 'Ithe firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify , ~hat I have this date served a copy of the Request for Production of Documents, by I ~nited States Mail, addressed to the party or attorney of record as follows: \ Patricia Haas Carll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LP 800 N. Third Street, 2nd Floor Harrisburg, PA 17102 J. Michael Kunsch, Esquire Sweeney & Sheehan 19th Floor - 1515 Market Street Philadelphia, PA 19102-1983 D~te: Ii i f..- , ;/19 ![(~ "l d' ") 'y (j . j l BY: GRIFFITH, STRICKLER, LERMAN, / SOL YMOS ,. CALKIt;JS / . JU Lt i ~~'~ j/l U~~? MICHAEL B. SCHEIB, ESQUIRE Supreme Court 1.0. No. 63868 Attorney for Defendant, Amerigas 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 (~~: ,-' ~-;-::? ~ - ~ I r" Q -n .--' ......~. -n f"h;:.::;. . ~i -tJ (~~, ?,'\ 1:., >...~., t.,.' '-.;,-r, . _ -,', .~ /..(), \" , ~:\ , ' ~ v> '.'i} n"_ - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LAW v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this~ay Of~~'h~ 2005, I, Michael B. Scheib, Esquire, a member !of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify ~hat I have this date served a copy of the Interrogatories of Defendant Amerigas birected to Co-Defendant Empire Comfort Systems, by United States Mail, addressed ~.o the party or attorney of record as follows: Patricia Haas Corll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LP 800 N. Third Street, 2nd Floor Harrisburg, PA 17102 J. Michael Kunsch, Esquire Sweeney & Sheehan 19t11 Floor - 1515 Market Street Philadelphia, PA 19102-1983 D~te: , .. \^" ( /' Y L..,;... D~ BY: GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS if! / / /"/. 7d Cl! {{ p cP/ f(/v . ! (O/-\ /, tv-- MICHAEL B. SCHEIB, ESQUIRE Supreme Court 1.0. No. 63868 Attorney for Defendant, Amerigas 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 ....--- (2 r-> g cf' ~ -- ~ \ r<' ::'~ ~ .-1 ~-D \l+?- rr -OC? ~-~2 1 (j.t.J :--;~: '::3;., -';'~,~;'f\ '2 0> N -_.~.; ~~l ----- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LAW v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMANDED \ CERTIFICATE OF SERVICE .fV'I t~' AND NOW, thisdVQay of April, 2005, I, Michael B. Scheib, Esquire, a member of i.the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify ~hat I have this date served a copy of the Interrogatories of Defendant Amerigas pirected to Plaintiff - Set 1, by United States Mail, addressed to the party or attorney of , ~ecord as follows: Patricia Haas Corll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LP 800 N. Third Street, 2nd Floor Harrisburg, PA 17102 J. Michael Kunsch, Esquire Sweeney & Sheehan 19th Floor -1515 Market Street Philadelphia, PA 19102-1983 " \1 :', I, n ,- Date: r- \). J U:-:. BY: GRIFFITH, STRICKLER, LERMAN, / SO; YMfS & C~~KrS ' 7'1 ' ~ , , I .. ; i. ,/ c:f' ".~'" ,: / ' ,/ IJ 11/.......,>) / .Lc../i L, r v c- ... // MICHAEL B. SCHEIB, ESQ IRE Supreme Court 1.0. No. 63868 Attorney for Defendant, Amerigas 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 9n -< ..-.:;,0 -r: ....~. =::::' -,.- ~, ~r....li.;.;;i; ::\.:':' " , .~ I, (') (~ ,..., = ~ S' ,-", t.....::., - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LAW v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMANDED (lJ CERTIFICATE OF SERVICE AND NOW, this~day of September, 2005, I, Michael B. Scheib, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have this date served a copy of the Response of Defendant Amerigas to Request for Production of Documents of Defendant Empire Comfort Systems, by United States Mail, addressed to the party or attorney of record as follows: Patricia Haas Corll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LP 800 N. Third Street, 2nd Floor Harrisburg, PA 17102 J. Michael Kunsch, Esquire Sweeney & Sheehan 19th Floor - 1515 Market Street Philadelphia, PA 19102-1983 Date: C) I 'd,').1 DS GRIFFITH, STRICKLER, LERMAN, 10l Y/,O";tCALKI'f ;/ LLtcJT6 fttu.r BY: MICHAEL B. SCHEIB, ESQUIRE Attorney 1.0. No. 63868 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 Attorney for Defendant, Amerigas o c. 2: -CC~ 1',,;"",. '-'.~' ~~~;.' f2_ ~~7(~ j:!C<~ :2:. -? -, ';;::3 ~ 'J'> ~ :::, ;P" ~ o "r1 s=J...,., flip rn -cr'J 4J"T .~~~. "Y(A '(Sr ::..;~ "oj :Z '-? .r::- o IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., as Subrogee: OF RICHARD AND KAREN MARLIN, Plaintiff CIVIL ACTION - LAW v. NO. 04-6539 AMERIGAS AND EMPIRE COMFORT SYSTEMS, Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this day of September, 2005, I, Michael B. Scheib, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have this date served a copy of the Answers of Defendant Amerigas to Interrogatories of Defendant Empire Comfort Systems, by United States Mail, addressed to the party or attorney of record as follows: Patricia Haas Corll, Esquire Weber Gallagher Simpson Stapleton Fires & Newby, LP 800 N. Third Street, 2nd Floor Harrisburg, PA 17102 J. Michael Kunsch, Esquire Sweeney & Sheehan 19th Floor - 1515 Market Street Philadelphia, PA 19102-1983 Date: 9l;lS \oS GRIFFITH, STRICKLER, LER;M'. ' SOL Y S & ALKI l.. , BY: It MICHAEL B. SC I, SQUIRE Attorney 1.0. No. 63868 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 Attorney for Defendant, Amerigas Q '''' ~,. -c: cr' !~Jt, .......,.. ~! ....-~ t '~~~ ::- ,,:C_.,-. j;'~;; >-, =2 ...., = = c.n (/> fT1 -0 N -.l ~ -< Xli rl1?';o: -01'>: :bc;> '?:'2:~t:~ ':2 C) ;:,;~;rn '-, _.-, ,~ ,oj.] :-< ="'" ~ .....9 .,,.. o .,il II II Ii , . II \ II " SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 Suite 1900 Philadelphia, Pennsylvania 19102 (215) 563-9811 Fax (215) 557-0999 Attorney for: DEFENDANT, EMPIRE COMFORT SYSTEMS, INC STATE FARM INSURANCE CO., AS SUBROGEE OF RICHARD MARLIN AND KAREN MARLIN COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. AMERIGAS and EMPIRE COMFORT SYSTEMS, INC NO. 04-6539 DEFENDANT'S, EMPIRE COMFORT SYSTEMS, INC., MOTION TO COMPEL PLAINTIFF'S ANSWERS TO INTERROGATORIES AND RESPONSE TO REOUEST FOR PRODUCTION OF DOCUMENTS Defendant, Empire Comfort Systems, Inc., hereby moves this Court for an Order compelling Plaintiff to answer Defendant's Interrogatories and respond to Defendant's Request for Production of Documents and, in support thereof, avers as follows: 1. Plaintiff, State Farm Insurance Co., as Subrogee of Richard and Karin Marlin, commenced this action by filing a Complaint on or about December 30, 2004. 2. Plaintiff s Complaint arises out of an jncident which allegedly occurred in or about January and February, 2003, during which time Richard Marlin and Karin Marlin, insureds of State Farm Insurance Company, allegedly sustained soot damage to their residence at 604 Cocklin Street, Mechanicsburg, Pennsylvania. ii , - 3. Plaintiff alleges that the soot damage was caused by a gas log heater manufactured by Empire Comfort Systems purchased by Mr. and Mrs. Marlin from Columbia Propane, the precursor entity to Defendant, Amerigas, and installed and serviced by Columbia Propane! Amerigas. 4. Plaintiff alleges that as a result ofthe soot damage, Mr. and Mrs. Marlin incurred damages in the amount of $13,590.89 to their property. 5. On March 28, 2005, Defendant, Empire Comfort System, served Interrogatories and a Request for Production of Documents upon counsel for Plaintiff. True and correct copies of Defendant's Interrogatories and Request for Production of Documents are attached hereto as Exhibits "A" and "B," respectively, and incorporated by reference herein. 6. To date, Plaintiff has not served Answers to Defendant's Interrogatories nor a Response to Defendant's Request for Production of Documents despite the requirements ofthe Pennsylvania Rules of Civil Procedure mandating that Plaintiffs Responses be served within thirty days after service of the discovery requests. 7. Following service of Defendant's discovery requests, Defendant, Empire Comfort Systems, Inc., granted Plaintiff an extension of time within which to respond to that discovery. 8. On July 7, 2005, counsel for Defendant, Empire Comfort Systems, Inc. forwarded correspondence to counsel for Plaintiff, demanding Answers to the outstanding discovery requests within seven days to avoid the necessity of filing a Motion to Compel same. In response to that correspondence, Plaintiffs counsel requested a brief additional extension of time to respond to the discovery. III " , .. o .0 9. Plaintiff s discovery responses are more than six months overdue, and the discovery requests seek information which is relevant to this proceeding and necessary for the Defendant to properly prepare its defense in this matter. 10. All attempts to resolve this discovery dispute without Court intervention have failed and, pursuant to Local Rule of Civil Procedure 208.2( d), the undersigned counsel certifies that he has attempted, on numerous occasions, to obtain the concurrence of Plaintiff s counsel to comply with the Rules ofCivi] Procedure and answer Defendant's discovery requests to no avail. WHEREFORE, Defendant, Empire Comfort Systems, Inc., respectfully requests the Honorable Court to enter an Order in the form attached, granting Defendant's Motion to Compel Plaintiffs Answers to Interrogatories and Response to Defendant's Request for Production of Documents within twenty (20) days. SWEENEY & SHEEHAN BY:~^, 1. MIchael Kunsch .. . VERIFICATION J. MICHAEL KUNSCH verifies and says that he is an attorney-at-law in the offices of SWEENEY & SHEEHAN; that he is authorized to make this Verification; and, that the facts set forth in the foregoing DEFENDANT'S, EMPIRE COMFORT SYSTEMS, INC., MOTION TO COMPEL PLAINTIFF'S ANSWERS TO INTERROGATORIES AND RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 P A. CS. Section 4904 relating to unsworn falsification to authorities. \A- DATE: NOVEMBER 16,2005 " .. , SWEENEY & SHEEHAN BY: J. MICHAEL KUNSCH Identification No. 61922 Suite 1900 Philadelphia, Pennsylvania 19102 (215) 563-9811 Fax (215) 557-0999 Attorney for: DEFENDANT, EMPIRE COMFORT SYSTEMS, INC STATE FARM INSURANCE CO., AS SUBROGEE OF RICHARD MARLIN AND KAREN MARLIN COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. AMERIGAS and EMPIRE COMFORT SYSTEMS, INC. NO. 04-6539 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within DEFENDANT'S, EMPIRE COMFORT SYSTEMS, INC., MOTION TO COMPEL PLAINTIFF'S ANSWERS TO INTERROGATORIES AND RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS was made on November 16, 2005 to all counsel of record by United States First Class Mail, postage prepaid. SWE~HAN By: ~ 1. Michael Kunsch " # . EXHIBIT "A" II . TO: PLAINTIFF SWEENEY & SHEEHAN BY: 1. MICHAEL KUNSCH Identification No. 61922 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102 (215) 563-9811 Fax (215) 557-0999 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED INTERROGATORIES WITHIN THIRTY (30) DAYS FROM THE SERVICE HEREOF OR A DEF AUL T JUDGMENT MAY BE ENTERED AGAINST YOU. Attorney for: DEFENDANT, EMPIRE COMFORT SYSTEMS, INC. STATE FARM INSURANCE CO., AS SUBROGEE OF RICHARD MARLIN AND KAREN MARLIN COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. AMERIGAS and EMPIRE COMFORT SYSTEMS, INC NO. 04-6539 INTERROGATORIES TO: PLAINTIFF DATE: MARCH 28, 2005 INSTRUCTIONS 1. These Interrogatories are to be answered pursuant to the provisions of Pennsylvania Rule of Civil Procedure 4003.5. 2. These Interrogatories are continuing and any information secured subsequent to the filing of your Answers is to be furnished by supplemental response pursuant to Pennsylvania Rule of Civil Procedure 4007.4. 3. You must serve Answers to these Interrogatories on the Defendant within thirty (30) days after the service of the Interrogatories upon you or your counsel. 4. Defendant hereby reserves the right to file further Interrogatories or to pursue any other available discovery. 5. The use of the masculine shall include the feminine and neuter. The use of the singular shall include the plural. 6. Where exact information cannot be furnished, estimated information is to be supplied. Where an estimate is to be used, it should be identified as such, and an explanation should be given as to the basis on which the estimate is made, and the reason the exact information cannot be furnished. 7. If any document was, but no longer is in your possession or subject to your control, state what disposition has been made of it. It is sufficient to attach a copy of the document for the purpose of answering these Interrogatories. 8. The term "incident" as used in these Interrogatories refers to the incidents alleged in Plaintiff's Complaint which occurred on and after January 4,2003. INTERROGATORIES L address. Please identify yourself, stating your name, residential address and business (a) If current residential address differs from where the incident occurred, please list where incident took place. 2. How long have you resided at the address listed above? (a) Do you own or rent? Who are the owners of record? (b) Who resided at that address on the date of this incident - please list all persons and current location. 3. Have you inquired of all persons having knowledge of this lawsuit and examined all of Plaintiff's records pertaining to this claim? 4. If your Answer to the preceding Interrogatory is in the affirmative, please give the full name and last known address of each and every person contacted, and list all books, papers, photographs, reports, records, and/or documents of any type to which you referred in answering these Interrogatories, together with the present location of all such writings or pictures. . 5. Please identify the person or persons most familiar with the incident described in Plaintiff's Complaint as follows: (a) Name; (b) Last known residential address and business address; and, (c) Description of duties at the times relevant to the Plaintiff's Complaint. 6. To the extent known to you, your attorney or any other representative, set forth the name, home and business address of the following persons. (a) Those who actually saw the incident; (b) Those who were present at or near the scene at the time of the incident; and, (c) Those who have any knowledge of or information concerning the facts; the surrounding circumstances, or the manner in which the incident happened. 7. For each person listed in the preceding Interrogatory, state their exact location, point of observation, and activity, if any, at the time of the incident. 8. If at the time of the accident or subsequent thereto, any of the persons listed in the Answer to Interrogatory Number Six (6), above, were or are relatives, acquaintances, agents, employers, employees or representatives of any party to this action, state the nature of such association as to each person. 9. At the time of the accident or immediately thereafter, did the Plaintiff have any conversation with or make any statements to any of the parties or witnesses or did any of them make any statements to or in the presence of Plaintiff? If so, state the substance of any such conversation or statement and identify the participants and those people in whose presence it took place. 10. State whether you, or anyone acting on your behalf has obtained from any person or persons any report, statement, memorandum or testimony concerning the accident on which this case is based. If so, set forth: (a) The name, last known address, present whereabouts, and job classification, if known, of each such person; (b) Where, when and by whom each such report, statement, memorandum or testimony was obtained or made? (c) Which of the reports or statements were oral, written, transcribed or recorded and which were signed or unsigned; and (d) The name, address, and job classification of the custodian of any such written, transcribed or recorded statement. 11. State whether you, or anyone acting on your behalf, reported this accident to any person or company. If so, set forth: (a) A detailed description of all such reports; (b) Which of the reports were made in the ordinary course of business; (c) The date on which each was made; (d) The name, address, job classification and employer of the person to whom each was made; or, alternatively, the name and address of the company to whom each was made; (e) Which of the reports were oral, written, transcribed or recorded and which were signed or unsigned; and, (f) The name, address and job classification of the custodian of any such written, transcribed or recorded report. 12. State whether you, or anyone acting on your behalf, has taken any photographs, movies or videotapes of the area involved in this accident, the locale or area surrounding the site of the accident, or any other matter or thing relating to this accident. If so, set forth: (a) The date and time of day which each photograph was taken; (b) The name, address and employer of the person taking it; (c) The place where each photograph was taken; (d) The object(s) or subject(s) of the particular site or view each photograph represents : (e) The number of photographs taken; and, (f) The name, address, job classification and employer of the person who has possession or custody of the photographs and/or negatives thereof. 13. State whether any plans, drawings, blueprints, sketches, or diagrams exist or were made of the site of the accident, of the locale or area surrounding the scene of the incident, or of any other matter or thing relating to the incident. If so, set forth: (a) The identity of each such plan, drawing, blueprint, sketch, or diagram by subject matter; (b) The date and time of day when each was made; (c) The name, address, job classification and employer of the person making each; (d) The place where each was made; (e) The number of each made; and, (t) The name, address, job classification and employer of the person who has possession or custody of each. 14. Describe, in detail, the condition of the area of the incident on the date of the incident relevant to this suit as it was observed by; reported to, or described to you, or anyone acting on your behalf. 15. State the name, last known address and job classification of each person whom you, or anyone acting on your behalf, knows or believes to have any relevant knowledge of the conditions at the scene of the incident existing prior to, at, or immediately after the incident. 16. State, in detail, your version of the incident. 17. State the name and address of each fact witness who will testify at the trial of this case and the substance of the facts to which each witness is expected to testify. 18. Please identify by title, date, and author each document upon which the Plaintiff relied in making the allegations contained in the Plaintiff's Complaint. Provide a concise description of the contents of each such document and identify by name and address its current custodian. 19. Please state, in complete detail, exactly what items of property were destroyed or damaged as a result of the underlying incident. 20. Please state the full market value of each and every item of property destroyed or damaged as a result of the underlying incident. , 21. Please state the precise location, at the time of the loss, of each and every item of property destroyed or damaged as a result of the underlying incident, being specific as to where, by street address and floor, each and every item was located. 22. For what purpose was your location being used at the time of the loss? 23. Set forth exactly how the Plaintiff calculates the damages claimed in this action. 24. Set forth, in complete detail, each and every fact on which Plaintiff relies in claiming that Defendant was responsible for the alleged losses set forth in the Plaintiff's Complaint. , . 25. Please identify each Expert the Plaintiff expects to call at the trial of this case. 26. With respect to all Experts identified in response to the preceding Interrogatory: (a) Please describe, in detail, the subject matter on which each Expert is expected to testify. (b) Please state, in detail, the contents of all opinions to which each Expert is expected to testify. 27. Did Plaintiff have homeowner's or other applicable insurance in effect on the date of the incident? (a) Who is the insurer? , . (b) Was a claim made, and if so, what was the result? (c) Please provide claim number and adjuster. 28. Please describe the physical layout of your residence at the time of the incident. (a) How many floors, location of rooms, type of construction. (b) Where is your heating system and/or oil burner located (in relation to exterior walls, etc.)? 29. Did you have a service contract with Defendant? (a) When was the burner and/or system last serviced? By whom? (b) What did the work entail? . . . 30. Has any other company besides Defendant ever performed service and/or installation work on any part of the heating system at your premises while you have resided there? (a) If yes, please describe nature of work, when performed, and who performed the same. 31. What, if anything, was said to you by Defendant or its employees or representatives following the incident concerning the cause or causes of the same? (a) When, where and by whom was statement (or statements) made? 32. Prior to the incident, what, if anything, was said to you by Defendant or its employees or representatives concerning the operation, maintenance and/or servicing of your heating system? . . . 33. Please state, in detail, what was done to clean the premises following the incident, and who performed any such work. 34. Please describe the substance which you claim caused the damage. (a) Please attach any records concerning the same. 35. Please state whether the losses claimed herein were covered under any policies of Homeowner's or other insurance at the time of the incident alleged in Plaintiffs Complaint. 36. If your answer to the preceding Interrogatory was in the affirmative, please state the following: (a) The name of the insurance company; (b) The policy number for the subject insurance policy; o. . (c) The effective dates of said insurance policy; (d) The amounts of coverage provided by said policy; (e) The amount of any claim submitted under said policy; (0 The amount paid under said policy; (g) Please provide a copy of any subrogation receipt executed for said losses and/or damages; and, ~ -. . . . (h) Please provide copies of any and all documents regarding the claim made for said damages and losses, the adjusting of said claim and the resolution of said claim. SWEENEY & SHEEHAN BY~h ~ - II . II II \ .\ II . . . EXHIBIT "B" II .. . . . SWEENEY & SHEEHAN BY: 1. MICHAEL KUNSCH Identification No. 61922 Nineteenth Floor 1515 Market Street Philadelphia, Pennsylvania 19102 (215) 563-9811 Fax (215) 557-0999 Attorney for: DEFENDANT, EMPIRE COMFORT SYSTEMS, INC STATE FARM INSURANCE CO., AS SUBROGEE OF RICHARD MARLIN AND KAREN MARLIN COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. AMERIGASand EMPIRE COMFORT SYSTEMS, INC NO. 04-6539 REOUEST FOR PRODUCTION OF DOCUMENTS TO: PLAINTIFF DATE: MARCH 28, 2005 Pursuant to the Pennsylvania Rules of Civil Procedure, Defendant request production of the documents hereinafter described for inspection and copying. A written Response to this Request is required within thirty (30) days from the date hereof. .. . . . . 1 DOCUMENTS TO BE PRODUCED 1. Statements of witnesses to the accident. 2. Statements of the parties in any form. 3. All incident/accident reports prepared as a consequence of this accident. 4. All reports of accident investigation. whether or not they include statements of witnesses to the accident. 5. Typed records of any tapes or transcribed statements or memoranda of any witnesses or parties. 6. Photographs of the scene of the accident or of any instrmnentality. 7. Photographs of any damages. 8. Any and all bills and/or estimates of property damage. 9. Federal Income Tax Returns and W-2 Forms filed for the three years preceding the incident and from the incident to the present. 10. Reports of all experts who will testify at trial. 1 L A copy of the Homeowner's and/or other policy covering Plaintiff at the time of this loss. SWEENEY & SHEEHAN BY:~ ~ c\ -, ...., C.' --a __I ,~ ',.- , i",,~j G; n ") .~ -<', l..___' STATE FARM INSURANCE CO., AS SUBROGEE OF RICHARD MARLIN AND KAREN MARLIN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. 04-6539 CIVIL AMERIGAS and EMPIRE COMFORT SYSTEMS, INC, Defendants IN RE: MOTION TO COMPEL ORDER AND NOW, this to' day of December, 2005, a rule is issued on the plaintiff to show cause why the relief requested in the within motion to compel ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, 4i jJ - 1.- oJ (T~ .,~ ~-,. - ]1J.5' (., r:: ,I, \ "\ \ - '. , " IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STATE FARM INSURANCE CO., AS SUBROGEE of RICHARD MARLIN and KARIN MARLIN Plaintiffs, CASE NO.: 04-6539 (Arbitration Division) v. AMERIGAS, and EMPIRE COMFORT SYSTEMS, Defendants. PLAINTIFFS' ANSWER TO RULE AND NOW, come Plaintiffs, by and through their counsel, Patricia Haas Corll, Esquire, and Weber Gallagher Simpson Stapleton Fires & Newby and files the within Answer to Rule averring as follows: 1. Plaintiffs received the Rule from the Honorable Kevin A. Hess regarding the Motion to Compel filed by Defendant Empire Comfort Systems, lnc" on December 5, 2005. 2. Plaintiffs provided Answers to the Empire Defendant's Interrogatories and Written Responses to the Empire Defendant's Request for Production of Documents with attached documentation on December 22, 2005. 3. Plaintiffs respectfully submit that the proposed Order should not issue as Defendant's have been provided with the discovery responses they have sought. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP By: " /) flr{) .' / ," 1)/2'/<'" ffi. tricia ttorll, Esquire a. LDt;': 9238 800 No ird Street Harris' urg, P A 17102 717.237.6940 Attorneys for Plaintiffs Date: December 22, 2005 CERTIFICATE OF SERVICE 1, Patricia Haas Corll, Esquire, hereby certify that of a true and correct copy of the foregoing Answer to Rule has been furnished this 22nd day of December , 2005, to all counsel of record by U.S. First Class Mail, postage prepaid as follows: 1. Michael Kunsch, Esquire Sweeney & Sheehan 19th Floor, 1515 Market Street Philadelphia, P A 19102-1983 Michael B. Scheib, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402-3737 December 22, 2005 Weber Gallagher Simrison Sltapleton Fires & Newby,.LLP'--'::> I _ /0" 00 / By: patrQt,1.Jd; C;;;Il, Esquire .~\) ( ,.' ~ " I (-) ,,' c:::-:> 0 C (;;::-.") -n -~ t".r." CJ ..... ~ rq -'- -n n In C. ['-) d -.l I () -n ,'~_ :J --,:; () (...) (-~),-n ~-l ~! ,-- ~D en -< \ . IN THE COURT OP COMMON PLEAS OP CUMBERLAND COUNTY, PENNSYL VANIA STATE FARM INSURANCE CIVIL DIVISION-ARBITRATION COMPANY as subrogee of Richard Marlin and Karen Marlin, No.: GD 04-6539 Plaintiff, v. PRAECIPE TO SETTLE DISCONTINUE AND END AMERIGAS and EMPIRE COMFORT SYSTEMS, Piled on behalf of Plaintiff Defendant. Counsel of Record for this Party: Christopher P. Deegan, Esquire PA I.D. #85635 WEBER GALLAGHER SIMPSON STAPLETON PIRES & NEWBY, LLP Firm #594 Two Gateway Center 14th Ploor Pittsburgh, P A 15222 (412) 281-4541 \ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA STATE FARM INSURANCE CIVIL DIVISION-ARBITRATION COMPANYas subrogee of Richard Marlin and Karen Marlin, No.: GD 04-6539 Plaintiff, v. AMERIGAS and EMPIRE COMFORT SYSTEMS, Defendants. PRAECIPE TO SETTLE DISCONTINUE AND END To the Prothonotary: Kindly settle discontinue and end the above-captioned matter. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP L?~ Dated: "-r/rt / 0 l./ I 1~ I c.""" ~: (-) -l') ..... :t...,-, [i1~ .-u~? '-.0 ~ '-"~ :J' ., r;? ,