Loading...
HomeMy WebLinkAbout14-5394 Supreme Court of Pennsylvania Ca>!tril1fCOt1l It101 Pleas For Prothonotary Use Only: Civil Cover Sheet Docket No: Cumberland°� ,� County S The informalion collected on this form is used solely for court administration purposes. This farm dotes not supplement or replace}the,filing*and service ref pleadi1WS or otherpapers as required by lall,or rules of court. Commencement of Action: S Complaint ® Writ of Summons M Petition E Transfer from Another Jurisdiction rl Declaration of Taking c Lead Plaintiff's Name: Lead Defendant's Name: T Erie Insurance Exchange a/s/o Kerri Swartz Gregg Appliances, Inc. I Are money damages requested? ED Yes 0 No Dollar Amount Requested: Owithin arbitration limits 0 (check one) Ooutside arbitration limits N Is this a Class Action Suit? Yes [E No Is this an MDJAppeal? El Yes ED No A Name of Plaintiff/Appellant's Attorney: Karen L. Mascio, Esquire(Attorney I.D. No. 88848) Check here if you haVe no attorney(are a Self-Rep I-esente(i Clio Sal Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS 0 Intentional 0 Buyer Plaintiff Administrative Agencies El Malicious Prosecution 0 Debt Collection:Credit Card 0 Board of Assessment 0 Motor Vehicle rl Debt Collection:Other 0 Board of Elections 0 Nuisance 1 0 Dept.of Transportation S 0 Premises Liability 0 Statutory Appeal:Other ® Product Liability (does not include E mass tort) 0 Employment Dispute: rl Slander/Libel/Defamation Discrimination C 0 Other: 0 Employment Dispute:Other 0 Zoning Board T 0 Other: I 0 Other: o MASS TORT 0 Asbestos N 0 Tobacco 0 Toxic Tort-DES 0 Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste 0 Other: 0 Ejectment 0 Common Law/Statutory Arbitration B 0 Eminent Domain/Condemnation 0 Declaratory Judgment Q Ground Rent 0 Mandamus 0 Landlord/Tenant Dispute 0 Non-Domestic Relations PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Residential Restraining Order 0 Mortgage Foreclosure:Commercial 0 Quo Warranto 0 Dental 0 Partition 0 Replevin 0 Legal ® Quiet Title 0 Other: 0 Medical Other: 0 Other Professional: Updated 1/1/2011 a f fo SE P i<<t��. A'D , ` YC V4�0&W7` ' Johnson, Duffie, Stewart & Weidner By: Karen L. Mascio, Esquire I.D. No. 88848 Attorneys for Plaintiff 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 klma.idsw.com ERIE INSURANCE EXCHANGE a/s/o IN THE COURT OF COMMON PLEAS OF Kerri Swartz, CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CIVIL ACTION — LAW GREGG APPLIANCES, INC. t/d/b/aS3 C eV( / NO. I14` H.H. GREGG APPLIANCES and WHIRLPOOL CORPORATION ARBITRATION 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 S' LAWYER. 644802 /� q,9 9�'� IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association Lawyer Referral and Information Service 32 South Bedford St. Carlisle, PA 17013 Telephone (717) 249-3166 Toll Free (800) 990-9108 2 Johnson, Duffie, Stewart & Weidner By: Karen L. Mascio, Esquire I.D. No. 88848 Attorneys for Plaintiff 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 kl��jdsw.com ERIE INSURANCE EXCHANGE a/s/o IN THE COURT OF COMMON PLEAS OF Kerri Swartz, CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CIVIL ACTION — LAW GREGG APPLIANCES, INC. t/d/b/a NO. H.H. GREGG APPLIANCES and WHIRLPOOL CORPORATION ARBITRATION Defendants COMPLAINT AND NOW, comes Plaintiff, Erie Insurance Exchange a/s/o Kerri Swartz, by and through its counsel, Johnson, Duffie, Stewart & Weidner, and files the following Complaint: 1. Plaintiff, Erie Insurance Exchange ("Erie"), is a Pennsylvania insurance company with a place of business located at 4901 Louise Drive, Rossmoyne Business Center, Mechanicsburg, Pennsylvania 17055. 644802 2. At all relevant times, Plaintiff was the insurer of Kerri Swartz through Policy Number Q58 3109601 H for a residential property at which Ms. Swartz resided located at 405 N. Market Street, Mechanicsburg, Cumberland County, Pennsylvania 17055 (hereinafter the "residence"). 3. By virtue of the terms of the insurance policy between Erie Insurance Exchange and Ms. Swartz, Erie Insurance Exchange is the Subrogee of Kerri Swartz. 4. Gregg Appliances, Inc. is a Delaware corporation with a principal business address of 4151 East 9th Street, Indianapolis, IN 46240. Gregg Appliances operates a chain of appliance stores known as H.H. Gregg. 5. Gregg Appliances, Inc.'s registered agent for service in Pennsylvania is Corporation Service Company, 2595 Interstate Dr., Suite 103, Harrisburg, PA 17110. 6. Whirlpool Corporation is a Delaware Corporation with a principal business address of 2000 N. M-63, Benton Harbor, MI 49022. Whirlpool Corporation markets a line of appliances under the name "Maytag". 7. Whirlpool Corporation's registered agent for service in Pennsylvania is Corporation Service Company, 2595 Interstate Dr., Suite 103, Harrisburg, PA 17110. 8. On or about April 30, 2013, Ms. Swartz purchased a Maytag gas range at H.H. Gregg, 5800 Carlisle Pike, Mechanicsburg, Pennsylvania 17050. 9. On or about May 3, 2013, H.H. Gregg installed the range at the residence. 10. Neither H.H. Gregg nor Whirlpool Corporation warned Ms. Swartz that storing flammable materials in the storage drawer located beneath the range's oven created a fire hazard. 2 11. On or about May 13, 2013, while Ms. Swartz was using the oven, a pair of oven mitts stored in the range's storage drawer caught fire causing damage to the residence. 12. As a direct and proximate result of the failure to warn by Defendants, Gregg Appliances, Inc. and Whirlpool Corporation, Plaintiff, Erie Insurance Exchange, has sustained damages in the amount of seven thousand six hundred ninety five dollars and 62/100 cents ($7,695.62). COUNT I —STRICT LIABILITY 13. Plaintiff incorporates the averments of Paragraphs 1 through 12 of this Complaint as though fully set forth herein. 14. Defendants are engaged, and at all times relevant hereto were engaged, in the business of designing, marketing, manufacturing, selling, assembling, delivering and distributing, inter alfa, appliances, including ranges. 15. Defendants distributed, assembled, marketed, delivered, and/or sold the subject range in a defective and unreasonably dangerous condition to Ms. Swartz. 16. Defendants knew or should have known that the range would, and did, reach Ms. Swartz without substantial change in the condition in which it was originally sold. 17. The range was defective due to the failure of Defendants to provide adequate and proper instructions and/or warnings to Ms. Swartz for the safe use of the range. 3 18. For these reasons, Defendants are strictly liable to Ms. Swartz under Section 402A of the Restatement (2d) of Torts, the Restatement (3d) of Torts, and applicable case law. 19. As a direct and proximate result of Defendants' failure to provide proper warnings and instructions, Plaintiff sustained damage to real and personal property. WHEREFORE, Plaintiff, Erie Insurance Exchange a/s/o Kerri Swartz, respectfully requests that judgment be entered in its favor and it be awarded damages in the amount of seven thousand six hundred ninety-five dollars and 62/100 cents ($7695.62). COUNT II — NEGLIGENCE 20. Plaintiff hereby incorporates the averments of Paragraphs 1 through 19 of this Complaint as though fully set forth herein. 21. Defendants owed a duty of reasonable care to Ms. Swartz and Ms. Swartz relied upon Defendants to provide all necessary instructions and warnings necessary for safe operation of the subject range. 22. Defendants knew or should have known that storing flammable materials in the range's storage drawer created a fire hazard. 23. Defendants had a duty to warn Ms. Swartz of the hazards associated with storing flammable materials in the range's storage drawer. 24. Defendants failed to provide any warning as to the hazards associated with storing flammable materials in the storage drawer, thereby breaching their duty to Ms. Swartz. 25. Based upon past usage and custom, Ms. Swartz believed it was safe to store oven mitts in the range's storage drawer. Had Ms. Swartz been warned that 4 storing oven mitts in the range's storage drawer created a risk of fire she would have heeded the warning and not placed oven mitts within the storage drawer. 26. As a direct and proximate result of Defendants' negligent failure to warn, Plaintiff sustained damage to real and personal property. WHEREFORE, Plaintiff, Erie Insurance Exchange a/s/o Kerri Swartz, respectfully requests that judgment be entered in its favor and it be awarded damages in the amount of seven thousand six hundred ninety-five dollars and 62/100 cents ($7695.62). Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER BY: Karen L. Mascio, Esquire Attorney I.D. No. 88848 301 Market Street, P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Email: klm@jdsw.com Attorneys for Plaintiff Date: September�, 2014 5 VERIFICATION I, Francis Guillemette, Sr. Subrogation Specialist for Erie Insurance Exchange, hereby acknowledge that I have read the foregoing Complaint and that the facts stated therein are true and correct to the best of my knowledge'r information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: O G Francis Guillemette SHERIFF'S OFFICE OF CUMBERLAND COUNTY RonnyRAnderson Sheriff .iH'{ ` „,. _` ro[l.,n�fr, � �t�t�.nit�raC.�f�^�I� Jody S Smith Chief Deputy Richard W Stewart Solicitor OCT - I PSI 37 CUMBERLAND COUNT' PENNSYLVANIA Erie Insurance Exchange a/s/o Kerri Swartz vs. Gregg Appliances, Inc. t/d/b/a Gregg Appliances (et al.) Case Number 2014-5394 SHERIFF'S RETURN OF SERVICE 09/15/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Whirlpool Corporation, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Dauphin, Pennsylvania to serve the within Complaint & Notice according to law. 09/15/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Gregg Appliances, Inc. t/d/b/a Gregg Appliances, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Dauphin, Pennsylvania to serve the within Complaint & Notice according to law. 09/19/2014 The requested Complaint & Notice served by the Sheriff of Dauphin County upon Jennifer Smith, who accepted for Whirlpool Corporation, at 2595 Instate Drive, Suite 103, Harrisburg, PA 17110. Jack Lotwick, Sheriff, Return of Service attached to and made part of the within record. 09/19/2014 11:02 AM - The requested Complaint & Notice served by the Sheriff of Dauphin County upon Jennifer Smith, who accepted for Gregg Appliances, Inc. t/d/b/a Gregg Appliances, at 2595 Interstate Drive, Suite 103, Harrisburg, PA 17110. Jack Lotwick, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $53.49 SO ANSWERS, September 23, 2014 (c) CountySuite Sheriff, '. eteoseff. Inc. RONNR ANDERSON, SHERIFF Shelley Ruhl Real Estate Deputy Matthew L. Owens Solicitor Commonwealth of Pennsylvania County of Dauphin Dauphin County 101 Market Street Harrisburg, Pennsylvania 17101-2079 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Jack Duignan Chief Deputy Michael W. Rinehart Assistant Chief Deputy ERIE INSURANCE EXCHANGE A/S/O KERRI SWARTZ VS GREGG APPLIANCES, INC. T/D/B/A H.H. GREGG APPLIANCES Sheriffs Return No. 2014-T-2530 OTHER COUNTY NO. 2014-5394 And now: SEPTEMBER 19, 2014 at 11:02:00 AM served the within NOTICE & COMPLAINT upon GREGG APPLIANCES, INC. T/D/B/A H.H. GREGG APPLIANCES by personally handing to JENNIFER SMITH * 1 true attested copy of the original NOTICE & COMPLAINT and making known to him/her the contents thereof at C/O CSC, 2595 INTERSTATE DRIVE, SUITE 103 HARRISBURG PA 17110 * CUSTOMER SERVICE ASSOCIATE Sworn and subscribed to before me this 22ND day of September, 2014 COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Karen M, Hoffman, Notary Public City of Harrisburg, Dauphin County My Commission Expires January 8, 2018 So Answers, By D Sheriff Deputy: W CONWAY Sheriffs Costs: $66.5 9/18/2014 Shelley Ruhl Real Estate Deputy Matthew L. Owens Solicitor Commonwealth of Pennsylvania County of Dauphin Dauphin County 101 Market Street Harrisburg, Pennsylvania 17101-2079 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Jack Duignan Chief Deputy Michael W. Rinehart Assistant Chief Deputy ERIE INSURANCE EXCHANGE A/S/O KERRI SWARTZ VS GREGG APPLIANCES, INC T/D/B/A H.H. GREGG APPLIANCES Sheriffs Return No. 2014-T-2530 OTHER COUNTY NO. 2014-5394 And now: SEPTEMBER 19, 2014 at 1 l :02:00 AM served the within NOTICE & COMPLAINT upon WHIRLPOOL CORPORATION by personally handing to JENNIFER SMITH * 1 true attested copy of the original NOTICE & COMPLAINT and making known to him/her the contents thereof at C/O CSC, 2595 INTERSTATE DRIVE, SUITE 103 HARRISBURG PA 17110 * CUSTOMER SERVICE ASSOCIATE Sworn and subscribed to before me this 22ND day of September, 2014 COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Karen M. Hoffman, Notary Public City of Harrisburg, Dauphin County My Commission Expires January 8, 2018 So Answers, Sheriff of D By Deputy Sherif Deputy: W CONWAY Sheriffs Costs: $66.5 9/18/2014 ti WILLIAM J. FERREN & ASSOCIATES By: Daniel M. Brown, Esquire Atty ID # 59638 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1716 Attorney for Defendant Gregg Appliances, Inc., t/d/b/a H.H. Gregg Appliances ERIE INSURANCE EXCHANGE a/s/o Kerri Swartz, Plaintiff v. GREGG APPLIANCES, INC. t/d/bla H.H. GREGG APPLIANCES and: WHIRLPOOL CORPORATION Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW No.: 14-5394 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as counsel in the above -captioned matter on behalf of Defendant, Gregg Appliances, Inc. t'/d/b/a H.H. Gregg Appliances, in the above captioned matter. By: IAM J. FERREN & ASSOCIATES DA I'L M B" N, ESQUIRE Attorney for 1 efendant WILLIAM J. FERREN & ASSOCIATES By: Daniel M. Brown, Esquire Atty ID # 59638 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1716 Attorney for Defendant Gregg Appliances, Inc., t/d/b/a H.H. Gregg Appliances ERIE INSURANCE EXCHANGE a/s/o Kerni Swartz, Plaintiff V. GREGG APPLIANCES, INC. t/d/b/a H.H. GREGG APPLIANCES and: WHIRLPOOL CORPORATION Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW No. 14-5394 DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Defendant, Gregg Appliances, Inc. t/d/b/a H.H. Gregg Appliances, by and through its undersigned counsel, hereby demands a trial by a jury of twelve. By: WILLIAM J. FERREN & ASSOCIATES DANIEL M. BRO Attorney for Defe dant SQUIRE 0 I: C6 EL COL,: . A WILLIAM J. FERREN & ASSOCIATES By: Daniel M. Brown Atty. ID # 59638 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1716 PLAINTIFF/CO-DEFENDANT YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTEFt/C 0 SCLAIM WITHIN TWENTY (20) DAYS FROS RVICE HER DAN Attorney for Defendant, Gregg Appliances, Inc., t/d/b/a H.H. Gregg Appliances ERIE INSURANCE EXCHANGE a/s/o Kerni Swartz, V. GREGG APPLIANCES, INC. t/d/b/a H.H. GREGG APPLIANCES and : WHIRLPOOL CORPORATION COURT OF COMMON PLEAS CUMBERLAND COUNTY No.: 14-5394 ANSWER OF DEFENDANT, GREGG APPLIANCES, INC., t/d/b/a H.H. GREGG APPLIANCES, TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NEW MATTER CROSSCLAIM 1 Denied. After reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph one, and, hence, same are deemed denied with strict proof thereof demanded at the time of trial. 2. Denied. After reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph two, and, hence, same are deemed denied with strict proof thereof demanded at the time of trial. 3. Denied. The allegations contained in paragraph 3 of the plaintiffs complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 4. Admitted. 5. Admitted. 6. Denied. The allegations contained in paragraph 6 of the complaint are not directed to the answering defendant and no response is required by answering defendant. 7. Denied. The allegations contained in paragraph 7 of the complaint are not directed to the answering defendant and no response is required by answering defendant. 8. Admitted. 9. Denied. It is specifically denied that HH Gregg installed the range at the residence of Ms. Swartz. Strict proof thereof is demanded at trial. 2 10. Denied. The allegations contained in paragraph 10 of the plaintiffs complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. By way of further answer, warnings accompanied the appliance purchased by the plaintiffs insured. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 11. Denied. The allegations contained in paragraph 11 of the plaintiffs complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 12. Denied. The allegations contained in paragraph 12 of the plaintiffs complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. COUNT I — STRICT LIABILITY 13. Answering defendant incorporates by reference its answers to paragraphs 1 through 12 as though fully set forth at length herein. 14. Admitted in part; denied in part. It is admitted that at times relevant to this action answering defendant was engaged in the business of selling appliances. It is specifically denied that answering defendant was engaged in the business of designing, manufacturing and/or assembling appliances. By way of further answer, the remaining allegations contained in paragraph 14 of the plaintiffs complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 15. Denied. The allegations contained in paragraph 15 of the plaintiff's complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 4 16. Denied. The allegations contained in paragraph 16 of the plaintiffs complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 17. Denied. The allegations contained in paragraph 17 of the plaintiffs complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 18. Denied. The allegations contained in paragraph 18 of the plaintiffs complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 5 19. Denied. The allegations contained in paragraph 19 of the plaintiff's complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. WHEREFORE, answering defendant demands judgment in its favor. COUNT II — NEGLIGENCE 20. Answering defendant incorporates by reference its responses to paragraphs 1 through 19 as though fully set forth at length herein. 21. Denied. The allegations contained in paragraph 21 of the plaintiff's complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 22. Denied. The allegations contained in paragraph 22 of the plaintiff's complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments 6 contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 23. Denied. The allegations contained in paragraph 23 of the plaintiff's complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 24. Denied. The allegations contained in paragraph 24 of the plaintiff's complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 25. Denied. The allegations contained in paragraph 25 of the plaintiffs complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. 7 26. Denied. The allegations contained in paragraph 26 of the plaintiffs complaint are denied as they represent conclusions of law to which no response is required. To the extent that said allegations are not conclusions of law, they are denied for the reason that after reasonable investigation, the answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. Any and all factual averments are specifically denied, and strict proof thereof is demanded at trial. WHEREFORE, answering defendant demands judgment in its favor. NEW MATTER 27. Plaintiff fails to state a claim against the answering defendant. 28. Plaintiff fails to state a cause of action against answering defendant. 29. Some or all of the damages claimed by the plaintiff are not recoverable under applicable law. 30. If the plaintiff suffered damages as alleged, which averments are denied, then the sole and exclusive cause of any such alleged injuries or damages was the negligence and carelessness of others and not that of the answering defendant. 31. The negligent acts and/or omissions of other individuals and/or entities may have constituted an intervening, superseding cause of the damages alleged to have been sustained by the plaintiff. 32. The plaintiffs claims may be barred in whole or in part by the applicable statute of limitations. 8 33. The plaintiff's claims may be barred in whole or in part by the applicable doctrines of res judicata and/or collateral estoppel. 34. The plaintiff's claims are barred by the failure to mitigate damages. 35. The incident referred in the plaintiffs complaint was not caused by any act or failure to act on the part of the answering defendant. 36. The plaintiff's claims are barred or limited by the applicable warranties. 37. The plaintiff's claims are barred by the gist of the action doctrine. 38. The subject dispute is governed by an arbitration agreement, and the plaintiffs claim is improperly brought in this jurisdiction or venue. 39. The plaintiffs claim is barred by the defense of accord and satisfaction. 40. The plaintiffs claims may be barred or limited by the comparative negligence of its insured. 41. The plaintiffs claims may be barred or limited by the misuse of the product by its insured. 42. The plaintiff is barred by the doctrine of assumption of risk because the plaintiffs insured perceived the risk of its own damages and consciously chose to encounter that risk. 43. If plaintiffs alleged damages were caused in any respect by a product supplied by answering defendant, said product was not being used in the manner and/or for the purpose which could have reasonably been foreseen by answering defendant. 9 44. The injuries and damages allegedly sustained by plaintiff were caused solely in part by a person or persons over whom answering defendant had no control and/or no right to control, thus barring recovery from answering defendant in whole or in part. 45. The answering defendant incorporates, as though fully set forth herein, the affirmative defenses delineated under Pennsylvania Rule of Civil Procedure 1030. WHEREFORE, the answering defendant demands judgment in its favor and against the plaintiff. NEW MATTER IN THE NATURE OF CROSSCLAIM PURSUANT TO Pa. R.C.P. 1031.1 AGAINST CO-DEFENDANT, WHIRLPOOL CORPORATION 46. The incident referenced in plaintiffs complaint was caused solely by the defective product and/or negligence of the co-defendant, Whirlpool Corporation, and was due in no manner whatsoever to any act or failure to act on the part of answering defendant. 47. The co-defendant, Whirlpool Corporation, is alone and solely liable to plaintiff. 48. If any liability is judicially determined against answering defendant, with all such liability being specifically denied, then it is averred that the co-defendant, Whirlpool Corporation, is liable over to answering defendant by way of indemnification or contribution and/or are jointly and severally liable with answering defendant. 10 WHEREFORE, answering defendant demands judgment against plaintiff and the co-defendant, Whirlpool Corporation, and hereby crossclaims pursuant to Pa. R.C.P. 1031.1 together with an award of attorney's fees and costs incurred in defense of this matter. WILLIAM J. FER N & ASSOCIATES BY: Daniel ! :ron Attorney for.fen Gregg Appliances, H.H. Gregg Appliances 11 VERIFICAT LON I, Susan. Earle, verify that the statements made in the foregoing answer, new matter and new matter crossclaim are true• and correct to the best, of my knowledge, information and belief. I understand that false statements herein made are subject o the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. 12 WILLIAM J. FERREN & ASSOCIATES By: Daniel M. Brown Atty. ID # 59638 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1716 Attorney for Defendant, Gregg Appliances, Inc., t/d/b/a H.H. Gregg Appliances ERIE INSURANCE EXCHANGE a/s/o Kerni Swartz, V. GREGG APPLIANCES, INC. t/dlbla H.H. GREGG APPLIANCES and : WHIRLPOOL CORPORATION COURT OF COMMON PLEAS CUMBERLAND COUNTY No.: 14-5394 CERTIFICATE OF SERVICE I, Daniel M. Brown, Esquire, counsel for Defendant, Gregg Appliances, Inc., t/d/b/a H.H. Gregg Appliances, hereby state that a true and correct copy of the foregoing Answer and New Matter and New Matter Crossclaim to Plaintiffs Complaint was served on the counsel below on November 6, 2014, via electronic mail and/or United States regular first- class mail, first-class postage prepaid: Karen L. Mascio, Esquire Johnson, Duffle, Stewart 8 Weidner 301 Market Street P.O. Box 109 BY: Lemoyne, PA 17043-0109 Whirlpool Corporation 2000 N. M-63 Benton Harbor, MI 49022 WILLIAM J. FERREN & ASSOCIATES DanfV Brown, q Attorney for defendan I Johnson, Duffie, Stewart & Weidner By: Karen Mascio Romano, Esquire I.D. No. 88848 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 kmr(jdsw.com ERIE INSURANCE EXCHANGE a/s/o Kerri Swartz, Plaintiff t `Lr D—V ::`: '0 i e» r i �• :_ I ROTHONO aim. t i 20IliNOV 26 PM !2' 14L, CUMBERLAND COUNTY PENNSYLVANIA Attorneys for Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA v. : CIVIL ACTION — LAW GREGG APPLIANCES, INC. t/d/b/a : NO. 14-5394 H.H. GREGG APPLIANCES and WHIRLPOOL CORPORATION : ARBITRATION Defendants PLAINTIFF'S REPLY TO NEW MATTER OF GREGG APPLIANCES, INC., t/d/b/a H.H. GREGG APPLIANCES AND NOW, comes the Plaintiff, by and through its counsel, Johnson, Duffie, Stewart & Weidner and files the within reply to Defendant Gregg Appliances, Inc., t/d/b/a H.H. Gregg Appliances' New Matter by stating as follows: 27.-44. The averments of Paragraphs 27 through 44 of Defendant's New Matter constitute legal conclusions to which no response is required. To the extent a response is deemed necessary, the averments of these paragraphs are denied and strict proof thereof is demanded. 666485 45. Paragraph 45 is an incorporation paragraph to which no response is required. To the extent a response is deemed necessary, all affirmative defenses delineated under Pa .R.C.P. 1030 are denied and strict proof thereof is demanded. 46.-48. The averments of Paragraphs 46 through 48 are not directed to the Plaintiff; therefore, no response is required. WHEREFORE, Plaintiff respectfully requests that judgment be entered in its favor. Date: November o2c72 , 2014 Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER BY: 2 Lizift c//1* Karen Mascio Romano, Esquire Attorney I.D. No. 88848 301 Market Street, P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Email: kmr@jdsw.com Attorneys for Plaintiff d• CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been duly served upon all counsel of record by depositing the same in the United States First Class Mail, postage prepaid, in Lemoyne, Pennsylvania, on 1\1ok1 , 2014, as follows: Daniel M. Brown, Esquire William J. Ferren & Associates 10 Sentry Parkway, Suite 301 Blue Bell, PA 1.9422 (Counsel for Defendant, Gregg Appliances, Inc. t/d/b/a H.H. Gregg Appliances) Jason M. Schmidt, Esquire Whirlpool Corporation 600 W. Main Street Benton Harbor, MI, 49022-2692 (Counsel for Whirlpool Corporation) Karen M. Romano, Esquire 3