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HomeMy WebLinkAbout14-6109 Supreme Court of ;Pennsylvania Court,of Common; Pleas For Prothonotary Use Only: Civil Cover Sheet Docket No: CUMBERLAND County The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S [T Complaint ❑ Writ of Summons ❑ Petition ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T Kenneth Dietz, Jr. Home Depot USA, Inc. Are money damages requested? Q Yes ❑ No Dollar Amount Requested: ❑within arbitration limits I (check one) outside arbitration limits 0 N Is this a Class Action Suit? ❑ Yes No Is this an MDJAppeal? ❑ Yes El No A Name of Plaintiff /Appellant's Attorney: Herman A. Gailey, III ❑ Check here if you have no attorney (are a Self - Represented [Pro Se] 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 ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑ Debt Collection: Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt Collection: Other ❑ Board of Elections ❑ Nuisance Dept. of Transportation ►5` ❑ Premises Liability Statutory Appeal: Other Q Product Liability (does not include mass tort) ❑Employment Dispute: E Slander/Libel/ Defamation Discrimination C ❑ Other: ❑Employment Dispute: Other ❑Zoning Board T ❑ Other: I' ❑ Other: O MASS TORT ❑ Asbestos N' ❑ Tobacco ❑ Toxic Tort - DES ❑ Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS ❑ Toxic Waste ❑ Other: ❑Ejectment [3 Common Law /Statutory Arbitration B ❑ Eminent Domain/Condemnation ❑ Declaratory Judgment ❑ Ground Rent Mandamus ❑ Landlord/Tenant Dispute Non- Domestic Relations ❑ Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY ❑ Mortgage Foreclosure: Commercial ❑ Quo Warranto ❑ Dental ❑ Partition ❑ Replevin ❑ Legal ❑ Quiet Title ❑ Other: ❑ Medical ❑ Other: ❑ Other Professional: Updated 111/2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH DIETZ, JR. and TINA DIETZ, his wife CIVIL ACTION — LAW Plaintiff No.: _ (' 1! 1 V. : JURY TRIAL DEMANDED HOME DEPOT USA, INC. and /or t /d /b /a THE HOME DEPOT, INC. and /or t /d /b /a ; THE HOME DEPOT MECHANICSBURG- : #4120 NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth against you 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 of 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 default 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. Lawyer Referral Service of the Cumberland County Bar Association 32 S. Bedford Street ` Carlisle, PA 17013 5 jl� 7J (800) 990 -9108 aq�3� 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. MidPenn Legal Services 401 E. Louther Street Suite 103 Carlisle, PA 17013 (800) 822 -5288 ADVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de viente (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se la avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por caulquier otra queja o compensacion por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA LISTED. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Lawyer Referral Service of the Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (800) 990 -9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH DIETZ, JR. and TINA DIETZ, his wife CIVIL ACTION — LAW Plaintiff No.: V. JURY TRIAL DEMANDED HOME DEPOT USA, INC. and /or t /d /b /a THE HOME DEPOT, INC. and /or t /d /b /a THE HOME DEPOT MECHANICSBURG- : #4120 COMPLAINT AND NOW, this day of Mobte -, 2014, come the Plaintiffs by and through their attorney, Herman A. Gailey, 111, Esquire and files the following Complaint. 1. Plaintiffs, Kenneth Dietz, Jr, and Tina Dietz, his wife, are adult individuals residing at 506 Guvray Drive, Red Lion, York County, Pennsylvania 17356. 2. Defendants, Home Depot U.S.A., Inc. and /or t /d /b /a The Home Depot, Inc. and /or t /d /b /a The Home Depot Mechanicsburg #4120, herein after called ( "Defendant "), is a corporation, with corporate offices located at 2455 Paces Ferry Road, Atlanta, Georgia, 30339, which owns the store known as The Home Depot Mechanicsburg 44120 with a principle place of business at 6000 Carlisle Pike, Mechanicsburg, Pennsylvania 17050. 3. At all times hereinafter mentioned Defendants acted through its agents, servants, workmen and employees then and there engaged in the business of the Defendant within the course and scope of their employment. 4. Defendants, at all times relevant hereto, were in complete ownership, custody, care and control of the property sold to Plaintiff, Kenneth Dietz, Kr., and which caused the electric shock injury described below. 5. On November 19, 2012, Plaintiff, Kenneth Dietz, Jr., purchased a Magnum X5 paint sprayer which was on display from The Home Depot Mechanicsburg #4120, located at 6000 Carlisle Pike, Mechanicsburg, Pennsylvania 17050. 6. On the same date, Plaintiff began to properly operate the paint sprayer in the use and manner for which it was designed and sold. As Plaintiff plugged the sprayer into an electrical socket he experienced a massive shock radiating into his right arm and throwing Plaintiff to the floor. 7. Immediately after this occurrence, Plaintiff inspected the underside of the sprayer and saw that the sprayer did not have a motor and therefore could not have functioned properly and created a dangerous condition. The underside of the sprayer also had printing noting "floor model not intended for use ". 8. At all times the paint sprayer was represented by Defendant to be a fully operational device. 9. At no time prior to the above occurrence did Plaintiff know or have reason to know that this device was not intended to be used as a functional paint sprayer. COUNT I — NEGLIGENCE Kenneth Dietz, Jr. v. Home Depot USA, Inc. and /or t /d /b /a The Home Depot, Inc. and /or t /d /b /a The Home Depot MechanicsburLF #4120 10. Paragraphs one (1) through nine (9) are incorporated by reference as if set forth fully hereunder. 11. Prior to the sale of the sprayer to Plaintiff, Defendant had actual or constructive notice of the aforesaid dangerous condition and /or had a duty to warn its patrons of this dangerous condition. 12. The Defendants were negligent in failing to correct the above described dangerous condition; and in failing to warn persons, including Plaintiff, of such dangerous condition in that Defendants: a. Sold a device which was inherently unsafe and unfit for use and which could not be safely energized. b. Failed to warn Plaintiff by any means either in writing, by signs or verbally that this device was not fully functional as a paint sprayer; C. Failed to maintain adequate quality control of its products; d. knew or should have known that said sprayer was a floor model not to be intended for use and that attempted use posed an unreasonable risk of harm or injury; e. Failed to provide its employees with adequate and sufficient warnings and instructions about the risks and dangers of selling floor model sprayers; f. Failed to warn purchasers /prospective users, such as Plaintiff, Kenneth Dietz, Jr. Of the dangers associated with the floor model sprayer; g. Failing to follow established industry standards; and h. Selling the sprayer to Plaintiff which was only intended to be a floor model and was unsuitable for its intended purpose as a safe and functional paint sprayer. 13. As a result of Defendant's negligence and breach of duty and the resulting electric shock injury described above, Plaintiff, Kenneth Dietz, Jr., sustained personal injuries which include, but are not limited to, injuries to the right hand and wrist, carpal tunnel syndrome requiring surgery, right scapholunate dissociation injury, right de Quervain tenosynovitis requiring surgery, nerve damage affecting multiple areas of the body, traumatic brain injury, disorientation, memory loss. 14. As a further result of the aforesaid electric shock injury to the Plaintiff, Kenneth Dietz, Jr., caused by the negligence of the Defendant, the Plaintiff has sustained and may sustain the following damages: a. Past and future pain and suffering; b. Past and future embarrassment, humiliation, and mental anxiety; C. Past and future loss of life's enjoyment; d. Past and future incident costs: e. Past and future reasonable and necessary medical expenses; f. Past and future loss of earnings; and g. Scarring and disfigurement. 15. Plaintiff, Kenneth Dietz, Jr. avers that his damages exceed the applicable limits of arbitration, therefore, a jury trial is hereby demanded. WHEREFORE, Plaintiff Kenneth Dietz, Jr. respectfully requests that this Honorable Court enter judgment against Defendants in an amount in excess of the applicable arbitration limits plus interest and costs as permitted by law. COUNT II Tina Dietz v. Home Depot USA, Inc. and /or t /d /b /a The Home Depot, Inc. and /or t /d /b /a The Home Depot Mechanicsburg 94120 16. Paragraphs one (1) through fifteen (15) are incorporated herein by reference thereto. 17. As a result of Defendants, Home Depot USA, Inc and /or t /d /b /a The Home Depot, Inc. and /or The Home Depot Mechanicsburg #4120, negligence and recklessness that caused personal injuries to her husband, Plaintiff, Tina Dietz, has lost and will continue to lose the companionship, comfort, society, services, and other forms of consortium of her husband. 18. This matter is alleged to exceed the applicable limits of arbitration, therefore, a jury trial is hereby demanded. WHEREFORE, Plaintiff, Tina Dietz, respectfully requests that this Honorable Court enter judgment against Defendants, Home Depot USA, Inc. and /or t /d /b /a The Home Depot, Inc. and /or t /d /b /a The Home Depot Mechanicsburg #4120, in an amount is excess of $50,000.00, plus interest and costs as permitted by law. Respectfully submitted, Date: Herman A. Gailey, 111, Esquire 96 South George Street Suite 430 York, Pennsylvania 17401 (717) 852 -8379 — phone (717) 852 -8268 — facsimile hag@martzandgailey.com ID #31097 VERIFICATION I, Kenneth Dietz, Jr., do hereby verify that the facts set forth in the Complaint are true to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of the 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. Kenneth Die z, Jr. Date: VERIFICATION I, Tina Dietz, do hereby verify that the facts set forth in the Complaint are true to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of the 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. �JLA� Tina Dietz Date: SHERIFF'S OFFICE OF CUMBERLAND COUNTY Pit:: —OFF Ronny RAnderson 4, THE f Q 1 }iQf t r'; :`'i Sheriff bf. .iui, Jody S Smith y `f 211,11i NOV `4 AM Ig: 146 Chief Deputy Richard W Stewart = CUMBERLAND COUNTY Solicitor OFFICE OF n $1%6RiFF PENNSYLVANIA Kenneth Dietz, Jr. (et al.) vs. Case Number Home Depot USA, Inc. and/or t/d/b/a The Home Depot Inc. (et al.) 2014-6109 SHERIFF'S RETURN OF SERVICE 10/16/2014 Ronny R Anderson, Sheriff, who being duly sworn according to law, states that he served the within Complaint & Notice upon the within named defendant, Home Depot USA, Inc. and/or t/d/b/a The Home Depot Inc., in the following manner: On October 16, 2014 the Sheriff mailed by certified mail, return receipt requested a true and correct copy of the within Complaint & Notice to the defendant's last known address of 2455 Paces Ferry Road, Atlanta, GA 30339. The certified mail return receipt card was received by the Cumberland County Sheriff's Office signed signature illegible, adult in charge for Home Depot USA, Inc. and/or t/d/b/a The Home Depot Inc. on October 20, 2014 per USPS.com. 10/17/2014 11:03 AM - Deputy Jamie DiMartile, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Adrean Rodemaker, Operations ASM, who accepted as "Adult Person in Charge" for The Home Depot - Mechanicsburg #4120 at 6000 Carlisle Pike, Hampden Township, Mechanicsburg, PA 17050. U2, lx\e\(:) IE DIMARTILE, DEPUTY SHERIFF COST: $61.99 SO ANSWERS, October 22, 2014 RONNY R ANDERSON, SHERIFF (c) CountySulte Sheriff, Teleosoft, inc. SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the maiipiece, or on the front if space permits. 1. Article Addressed to: COMPLETE THIS SECTION ON DELIVERY A. Signatu X B. Rece /ed by (Printed Name) ❑ Agent 0 Addressee C. Date of Delivery D. Is delivery address different from item 1? 0 Yes If YES, enter delivery address below: 0 No Home Depot USA, Inc. and/or t/d/b/a The Hothe epot Inc. 2455 Paces Ferry Road Atlanta, GA 30339 XJ q —lel (f1 Type VACertified Mail® 0 Priority Mail Express' ❑ Registered 0 Retum Receipt for Merchandise ❑ Insured Mail 0 Collect on Delivery 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Transfer from service labe° PS Form 3811, July 2013 7007 0710 0003 2210 4303 fl11V1 Domestic Return Receipt USPS.com® - USPS TrackingTM English Customer Service USPS Mobile USPICOM. . Quick Tools Ship a Package USPS TrackingTM Tracking Number: 70070710000322104303 Product & Tracking Information Postal Product: Features: Certified MaiITM October 20, 2014 , 9:10 am Delivered Send Mail Manage Your Mail ATLANTA, GA 30339 Your item was delivered at 9:10 am on October 20, 2014 in ATLANTA, GA 30339, October 20, 2014 , 9:09 am October 20, 2014 , 8:40 am October 18, 2014 , 1:29 am October 17, 2014 , 8:26 pm Sorting Complete Arrived at Unit Departed USPS Facility Arrived at USPS Facility Track Another Package Tracking (or receipt) number LEGAL Privacy Policy Terms of Use , FOIA No FEAR Act EEO Date , ON USPS.COM Government Services Buy Stamps & Shop Print a label with Postaa_e Customer Service Delivering Solutions to the Last Mile > Site Index USPS.COM* I Copyright© 2014 USPS. All Rights Reserved. ATLANTA, GA 30339 ATLANTA, GA 30339 HARRISBURG, PA 17107 HARRISBURG, PA 17107 Track It Page 1 of 1 Register / Sign In Search USPS.com or Track Packages Subr Shop Business Solutions Customer Service . Have questions? We're here to help. Available Actions Text Updates Email Updates Return Receipt After Mailing ON ABOUT.USPS.COM OTHER USPS SITES About USPS Home Newsroom USPS Service Alerts Forms & Publications Careers > Business Customer Gateway Postal Inspectors Inspector General Postal Explorer, National Postal Museum https://tools.usps.com/go/TrackConfirmAction?gtc_tLabels 1=70070710000322104303 10/22/2014 THE CHARTWELL LAW OFFICES, LLP BY: KENNETH M. DUBROW, ESQUIRE I.D. No. 34665 BY: JAMES J. WALSH, ESQUIRE I.D. No. 310107 One Logan Square 130 No. 18th Street, 26th Floor Philadelphia, PA 19103 (215) 972-7006 OF T frt� t' fr (�iC OTAR'r' 201411011 -6 Pry 2:25 CUt'LZCnLAN4 PENNS YLVij, Ty Attorney for Defendant, Home Depot U.S.A., Inc. KENNETH DIETZ, JR. and TINA DIETZ, his wife Plaintiffs v. HOME DEPOT USA, INC. and/or t/d/b/a THE HOME DEPOT, INC. and/or t/d/b/a THE HOME DEPOT MECHANICSBURG #4120 CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION - LAW NO. 14-6109 CIVIL Defendants PRAECIPE TO FILE NOTICE OF REMOVAL TO THE PROTHONOTARY: Pursuant to 28 U.S.C. §1441 and 1446(b), Defendants, Home Depot (misnamed above, Home Depot USA, Inc. and the Home Depot Mechanicsburg The Home Depot, Inc., files a copy of a Notice of Removal filed in the United S Court for the Middle District of Pennsylvania on November 3, 2014. U.S.A., Inc. - #4120) and tates District THE CHARTWELL LAW OFFICES, LLP Dated: November 4, 2014 BY: JA ! S J. WA H, ESQUIRE, Attorney for Defendants, Home. Depot U.S.A., Inc. and The Home Depot, Inc. THE CHARTWELL LAW OFFICES, LLP BY: KENNETH M. DUBROW, ESQUIRE I.D. No. 34665 BY: JAMES J. WALSH, ESQUIRE I.D. No. 310107 One Logan Square 130 No. 18th Street, 26th Floor Philadelphia, PA 19103 (215) 972-7006 Attorney for Defendant, Home Depot U.S.A., Inc. KENNETH DIETZ, JR. and TINA DIETZ, his wife Plaintiffs v. HOME DEPOT USA, INC. and/or t/d/b/a THE HOME DEPOT, INC. and/or t/d/b/a THE HOME DEPOT MECHANICSBURG#4120 CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION - LAW NO. 14-6109 CIVIL CERTIFICATE OF SERVICE I hereby certify that on November 4, 2014, a true and correct copy of Defendants' praecipe to file notice for removal of action was served upon the following by United States first class mail, postage pre -paid, addressed as follows: Herman A. Gailey, III, Esquire Martz .& Gailey LLP 96 South George Street, Suite 430 York, PA 17401 Dated: 11/04/14 Dietz(49301)/Pleadings/Praecipe to File Notice of Removal THE CHARTWELL LAW OFFICES, LLP BY: JAM J. WALSI4, ESQUIRE, Attorney for Defendants, Home Depot U.S.A., Inc. and The Home Depot, Inc. Case 1:14-cv-02105-JEJ Document 1 Filed 11/03/14 Page 2 of 3 4. At all times material hereto, Home Depot was duly registered to do, and was doing, business in the Commonwealth of Pennsylvania. 5. On or about October 16, 2014, Plaintiffs instituted the above action, by way of Complaint, a copy of which is attached hereto as Exhibit "A," in the PennsylVania Court of Common Pleas of Cumberland County, as of No. 14-6109, seeking damages for injuries which Plaintiff, Kenneth Dietz, Jr. (singularly, "Plaintiff"), purportedly sustained as a result of Defen- dants' alleged negligence. 6. Plaintiffs filed this matter seeking damages in excess of $50,000.00, exclusive of interest and costs, the sum representing the arbitration limits of Cumberland County. 7. Pursuant to a telephone conversation between Plaintiff's counsel, Herman A. Gailey, Ill, Esquire ("Galley") and Defendants' co -counsel, James J. Walsh, Esquire ("Walsh"), on October 30, 2014, Galley notified Walsh that Plaintiffs valued their claim in excess of Seventy -Five Thousand ($75,000.00) Dollars, exclusive of interest and costs. 8. Per letter dated October 30, 2014, a copy of which is attached hereto as Exhibit "B," Walsh confirmed that Plaintiffs valued their claim in excess of Seventy -Five Thousand ($75,000.00) Dollars, exclusive of interest and costs. 9. Diversity of citizenship exists between Plaintiffs, citizens and residents of the Commonwealth of Pennsylvania, and Defendants, corporations organized and existing under the laws of the State of Delaware and having their principal places of business in the State of Georgia. 10. The said diversity of citizenship existed at the time the action sought to be removed was commenced and continues to the time of the filing of this Notice. Therefore, as to said claim and cause of action, Defendants are entitled to removal pursuant to 28 U.S.C. §1441, et seq. Case 1:14-cv-02105-JEJ Document 1 Filed 11/03/14 Page 3 of 3 11. This Notice of Removal is timely under 28 U.S.C. §1446(b) as it is being filed within thirty (30) days after receipt by Defendants of Plaintiffs' Complaint. WHEREFORE, the above action now pending against Defendant in the Pennsylvania Court of Common Pleas, Cumberland County is removed therefrom to this Honorable Court. Respectfully submitted, THE CHART WELL LAW OFFICES, LLP Dated: 11/03/2014 BY: ./ si TAMES T. WALSH JAMES J. WALSH, ESQUIRE I.D. No. 310107 130 No. 18th Street, 26th Floor Philadelphia, PA 19103 (215) 972-7006 Attorney for Defendants, Home Depot U.S.A., Inc. and The Home Depot, Inc. JS 44 (Rev. 09/11) Case 1:14-cv-02105-JEJ Document 1-1 Filed 11/03/14 Page 1 of 1 CIVIL COVER SHEET The JS 44 civil coversheet and the infortration contained herein neither replace nor su plerrent the filing and service of pleadngs or other papers as fired by law, except as povided by local rules of court. This form, approved by the Judicial Conference of the United States inSeptember 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INS RUCTIONSONNEXTPAGEOFTHISFORM.) I. (a) PLAINTIFFS Kenneth Dietz, Jr. and Tina Dietz (b) County of Residence of First Listed Plaintiff York (PA) (EXCEPT IN US. PIA IN77FF CASES) C AUOrtr s, (Finn Name Address, an TelephoneNumbe He �an A. &alley, Ill, Esquire; 955 So. eorge St., Suite 430, York, PA 17401; (717) 852-8379 DEFENDANTS Home Depot USA, Inc., et al. County of Residence of First Listed Defendant Cobb (GA) NOTE: (IN U.S. PLAINTIFF CASES OM.Y) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys Known) James J. alsh, Esquire, The Chartwell Law Offices, LLP, 130 No. 18th St., 26th Floor, Phila., PA 19103 (215) 972-7006 II. BASIS OF JURISDICTION (Place an "X" in One Box Only) O 1 U.S. Government 0 3 Federal Question Plaintiff (U.S Government Not a Party) O 2 U.S. Government X 4 Diversity (Indicate Citizenship of Parties in Item III) Defendant CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Natal") (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF Citizen of This State tar, 1 O I incorporated or Principal Place 0 4 O 4 of Business In This State Citizen of Another State 0 2 0 2 Incorporated and Principal Place Cl 5 b1 5 of Business In Another State Citizen or Subject of a 0 3 0 3 Foreign Nation Foreign Country 0 6 0 6 IV. NATURE OF SUIT (Place an X" in One Box Omit ),;�: �.:>. •,::,c�Nr - :L ....�...�.. RACT..>:<�-_a,.yAr:=� ..�..,... ....:......:..<, .. ...._...-...� �,. -� , F: a._ -,.;i. , z tis,_. a. =.'t6: =.::s' ... TOIi=1CS._._ ,.;.<,-� . ti, .O ' A�T:;T:Y_: � �� IIFEITI7R!EfR�y . _ �--: .... �??BaSN1��ItLJP.-7sC- `;'=4=..�,_%!-:�,,� i,.. ?HERSTi>L'T:07S�Sr�ri: � .] O 110 Insurance O 120 Marine 0 130 Miller Act 0 140 Negotiable Instrument O 150 Recovery of Overpayment PERSONAL INJURY PERSONAL INJURY 0 310 Airplane 0 365 Personal Injury - 0 315 Airplane Product Product Liability Liability 0 367 Health Care/ 0 320 Assault, Libel & Pharmaceutical 0 625 Drug Related Seizure of Property 21 USC 881 0 690 Other 0 422 Appeal 28 USC 158 0 423 Withdrawal 28 USC 157 Cl 375 False Claims Act 0 400 State Reapportionment 0 410 Antitrust Cl 430 Banks end Banking O 450 Commerce l-' -"YROF.ER7;':Y=RIGa7c-t & Enforcement of Judgment O 151 Medicare Act O 152 Recovery of Defaulted Student Loans (Excl. Veterans) O 153 Recovery of Overpayment of Veteran's Benefits O 160 Stockholders' Suits 0 190 Other Contract O 195 Contract Product Liability 0 196 Franchise Slander Personal Injury 0 330 Federal Employers' Product Liability Liability 0 368 Asbestos Personal O 340 Marine rnjtay Product 0 345 Marine Product Liability.:.` Liability PERSONAL PROPERTY O 350 Motor Vehicle 0 370 Other Fraud 0 355 Motor Vehicle O 371 Truth in Lending Product Liability 0 380 Other Personal X 360 Other Personal Property Damage Injury 0 385 Property Damage 0 362 Personal injury - Product Liability Med. Malpractice O 820 Copyrights 0 830 Patent 0 840 Trademark 0 460 Deportation 0 470 Racketeer Influenced and Corrupt Organizations 0 480 Consumer Credit 0 490 Cable/Sat TV 0 850 Securities/Commodities/ Exchange 0 890 Other Statutory Actions 0 891 Agricultural Acts 0 893 Environmental Matters 0 895 Freedom of Information Act 0 896 Arbitration 0 899 Administrative Procedure '."=` 11ATIOR =?`':r?=" '=.-SOO NIPS)s`CIiRTEY:;= < N 0 710 Fair Labor Standards Act 0 720 Labor/Mgmt, Relations 0 740 Railway Labor Ael O 751 Family and Medical Leave Act 0 790 Other Labor Litigation 0 791 Empl. Ret. Ire. Security Act: 0 861 IIIA (139Sft) 0 862 Black Lung (923) 0 863 DIWC/DIWW (405(g)) • 0 864 SSID Title XVI 0 865 RSI (405(g)) t'^ : 'f REAI: PACWE R Y;x : H li _ 'Cr YdIi' t1-01 S::s7 *i tI thCTITIONS` :: PED Ril'It:T`AX,AUFTSFHF O 210 Land Condemnation 0 220 Foreclosure 0 230 Rent Lease & Ejectment 0 240 Torts to Land 0 245 Tort Product Liability Cl 440 Other Civil Rights 0 441 Voting 0 442 Employment 0 443 Housing/ Accommodations ,`kiERISOtNDt Cl 510 Motions to Vacate Sentence Habeas Corpus: 0 530 General 0 535 Death Penalty O 870 Taxes (U.S. Plaintiff or Defendant) 0 871 IRS—Third Party 26 USC 7609 Act/Review or Appeal of Agency Decision 0 950 Constitutionality of State Statutes -w"-'.=L,Ti1INXfI011?�M m- O 290 MI Other Real Property 0 445 Amer. w/Disabilities - Employment O 446 Amer. w/Disabilities - Other 0 448 Education 0 540 Mandamus & Other 0 550 Civil Rights O 555 Prison Condition 0 560 Civil Detainee- Conditions of Confinement 0 .62 Naturalization Application 0 463 Habeas Corpus - Alien Detainee (Prisoner Petition) 0 465 Other Immigration Actions V. ORIGIN (Place an "X" in One Box Only) Transferred from O 1 Original l 2 Removed from Ci 3 Remanded from 0 4 Reinstated or 0 5 another district 0 6 Multidistrict Proceeding State Court Appellate Court Reopened (soecifv) Litigation VI. CAUSE OF ACTION Cite the U.S. Civil Statute tinder which you are filing (Do nal cite furtsdictiorrnJstrrtutes unless dinersl0): 28 USC 1441 (Diversity) Brief description of cause: Premises Liability VII. REQUESTED IN COMPLAINT: VIII. RELATED CASES) IF ANY (See instructions): JUDGE O CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 DEMAND $ CHECK YES only if demanded in complaint: 50, 000.00 (tri excess) JURY DEMAND: rx Yes C/ No DOCKET NUMBER DATE 10/31/2014 SIGNATURE OF ATTORNEY OF RECORD /s/JAMES J. WALSH FOR OFFICE USE ONLY RECEIPT 8 AMOUNT APPLYING IF? MAG. JUDGE Case 1:14-cv-02105-JEJ Document 1-2 Filed 11/03/14 Page 1 of 11 Exhibit A Case 1:14-cv-02105-JEJ Document 1-2 Filed 11/03/14 Page 2 of 11 11'.17, 0 I_i %• ' i (,, l OF'1' `i l'10.1110;10 TAR 20140c1' 16 PH 1:01 CUf i! L RLP.?1fl COUNTY PEWS YL.'/AVIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA. KENNETH DIETZ, JR. and TINA DIETZ, lis wife Plaintili' v. HOME DEPOT USA, INC. and/or t/d/bla THE HOME DEPOT, INC. and/or t/d/bla . THE HOME DEPOT MECHANICSBURG- ; #4120 CIVIL ACTION - LAW No.: 19— LA JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED 1N COURT. If you wish to defend against the claims set forth against you 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 of 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 default judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claire or relief requested by the Plaintiff. You may lase money or property or other rights Important to you. YOU 'SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE,' IF YOU DO NOT l-IAVE A LAWYER 00'1'0 OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WiTH INFORMATION ABOUT HIRING A LAWYER, Lawyer Referral Service of the Cumberland County Bar Association 32 S. (Bedford Street Carlisle, PA 17013 (800) 990-9108 T,.IJE COPY FROM RECORD •t!mony whereof, I here unto avt my hand !ire cl.ofsaid Courtct FEArlisie, Pa. day of Q( ., 20 (5 Prothonotury. Case 1:14-cv-02105-JEJ Document 1-2 Filed 11/03/14 Page 3. of 11 IF YOU CANNOT AFFORD TO HIRE' A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION A13OUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. MidPcna Legal Services 401 E. Gouther Street Suite 103 Carlisle, PA 17013 (800) 822-5288 ADVISO USTED HA SIDO DENIANDADO EN LA CORTE. Si usted clesee defendersc de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de viente (20) dial a partir de la fecha en que recibio la dernanda y el aviso. Usted debe presenter compareceucia escrita en persona a. par abogado y presenter en la Corte por escrito sus defenses a sus objeciones 4 las demandas eu su contra. Sc la avisa que si no se deflende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclarnado en la dernanda o por caulquier otra queja a compensaclan par el Dernandante. LISTED PUEDE PERDER DINERO, 0 PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA LISTED. LLEVE TSTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, VAYA 0 LLAME A LA OFICINA EN LA DIRECCIO1V ESClUTA ABA JO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Lawyer Referral Service of the Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (800) 990-9108 Case 1:14cv-02105-JEJ Document 1-2 Filed 11/03/14 Page 4 of1.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KENNETH DIBTZ, JR. and TINA DIETZ, his wife CIVIL ACTION — LAW Plaintiff No.: V. JURY TRIAL DEMANDED HOME DEPOT USA, INC. and/Or ticl/b/a : THE HOME DEPOT, INC. and/or t/d/b/a : THE HOME DEPOT MECI-IANICSBURO ; #4120 COMPLAINT AND NOW, this el day of 6,44, 2014, come the Plaintiffs by and through their attorney, Herman A. Galley, ITT, Esquire and files the following Complaint. .1. Plaintiffs, Kenneth Dietz, Jr. and Tina Diet; his wife, are adult individuals residing at 506 Guvray Drive, Red Lion, York County, Pennsylvania 17356. 2. Defendants, Home Depot U.S.A., Inc. and/or t/d/b/a The Home Depot, Inc. and/or tid/b/a The Home Depot Mechanicsburg #4120, herein after called ("Defendant"), is a corporation, with corporate offices located at 2455 Paces Perry Road, Atlanta, Georgia, 30339, which owns the store known as The Home Depot Mechanicsburg ti4120 with a principle place of business at 6000 Carlisle Pike, Mechanicsburg, Pennsylvania 17050. Case 1:14-cv-02105-JEJ Document 1-2 Filed 11/03!14 Page 5 of 11 • 3, At all times hereinafter mentioned Defendants acted through its agents, servants, workman and employees than and there engaged in the business of the Defendant within the course and scope of their employment. 4. Defendants, at all times relevant hereto, were in complete ownership, custody, care and control of the property sold to Plaintiff, Kenneth Dietz, Kr., and which caused the electric shock injury described below. 5. On November 19, 2012, Plaintiff, Kenneth Dietz, Jr., purchased a Magnum X5 paint sprayer which was on display from The Home Depot Mechanicsburg #4120, located at 6000 Carlisle Pike, Mechanicsburg, Pennsylvania 17050, 6. On the same date, Plaintiff began to properly operate the paint sprayer in the use and manner for which it was designed and sold, As Plaintiff plugged the sprayer into an electrical socket he experienced a massive shock radiating into his right arm and throwing Plaintiff to the floor. 7. immediately after this occurrence, Plaintiff inspected the underside of the sprayer turd saw that the sprayer did not have a motor and therefore could not have fi.uictioned properly and created a dangerous condition. The underside of the sprayer also had printing noting "floor model not intended for use". 8. At all times the paint sprayer was represented by Defendant to be a stilly operational device. 9. • At no time prior to the above occurrence did Plaintiff know or have reason to know that this device was not intended to be used as a functional, paint sprayer. Case 1:14-dv-02105-JEJ Document 1-2 Filed 11/03/14 Page 6 of 11 COUNT I— NEGL[GENCE Kenneth Dietz, Jr, v. Home Depot USA, Inc, anal/or t/d/b/a The Home Depot, Inc. and/or tld/bin The Home De otMcchanicsbur #4120 10. Paragraphs one (1) through nine (9) arc incorporated by reference as if set forth fully hereunder. 11, Prior to the sale of the sprayer to Plaintiff, Defendant had actual or constructive notice of the aforesaid dangerous condition andlor had a duty to warn its patrons of this dangerous condition. 12. The Defendants were negligent in failing to correct the above described dangerous condition; and in failing to warn persons, including Plaintiff, of such dangerous condition in that Defendants: a. Sold a device which was inherently unsafe and unfit for use and which could not be, safely energized, b. Failed to warn Plaintiff by any means either in writing, by signs or verbally that this device was not fully functional as a paint sprayer; c. Failed to maintain adequate quality control of its products; d. knew or should have known that said sprayer was a floor model not to be intended for use and that attempted use posed an unreasonable risk of harm or injury; e. Failed to provide its employees with adequate and sufficient warnings and instructions about the risks and dangers of selling floor model sprayers; f. Failed to warn purchasers/prospective users, such as Plaintiff, Kenneth Dien-, Jr. Of the dangers associated with the floor model sprayer; Case 1:14-cv-02105-JEJ Document 1-2 Filed 11/03/14 Page 7 of 11 g. Failing to follow established industry standards; and h. Selling the sprayer to Plaintiff which was only intended to be a floor model and was unsuitable for its intended purpose as a safe and functional paint sprayer. 13. As a result of Defendant's negligence and broach of duty and the resulting electric shock injury described above, Plaintiff, Kenneth Dietz, Jr,, sustained personal injuries which include, but are not limited to, injuries to the right hand and wrist, carpal tunnel syndrome requiring surgery, right scapholunate dissociation injury, right de Quervain tenosynovitis requiring surgery, nerve damage affecting multiple areas of the body, traumatic brain injury, disorientation, memory loss, 14. As a further result of the aforesaid electric shock injury to the Plaintiff, Kenneth Dietz, Jr., caused by the negligence of the Defendant, the Plaintiff has sustained and may sustain the following damages: a. Past and future pain and suffering; b. Past and future embarrassment, humiliation, and mental anxiety; c, Past and future loss of life's enjoyment; d. Past and Future incident costs; e. Past and future reasonable and necessary medical expenses; Past and future loss of earnings; and Scarring and disfigurement. 15, Plaintiff, Kenneth Dietz, Jr, avers that his damages exceed the applicable limits. of arbitration, therefore, a jury trial is hereby demanded, Case 1:14-cv-02105-JEJ Document 1-2 Filed 11/03/14 Page 8 all WHERE•Ft7'fz.B,•l'lnintiffKenneth Dietz., Jr. respectfully requests tial. this (lcnorable Court enter judgment against T)efendm Is in an amount in excess of the applicable arbitration linjits plus interest and cost as permitted by law. COUNT 11 Tina Dietz v. Home 1)ei")ot USA, Inc. ,ind/nr thl/b/at'1<h The Houle Depot, Inc. and/or 1/d/b/a The Home Depot Mechauncsbura #4120 16. Paragraphs one (I) through fifteen (15) arc incorporated herein by reference thereto. 17. As a result of Defendants, I tome 1.)cpot LISA Inc and/or t/d/b/a'The (ionic Depot, hie. and/or The I -tome Depot Mechanicsburg 1t'1 120, negligenec and recklessness that caused personal injuries to her husband, Plaintiff, Tina I)ictiy flan lost and will, continue to lose the companionship, corn loft, society, services, and other forms of consort' urn of her husband. 18, This matter is alleged to exceed the applicable limits of arbitration, thercli)re, jury trial is hereby demanded. ded. WHEREFORE, Plaintiff, Tina Dietz, respectfully requests that this llottoralble Court, Enter judgment against Defendants, T-lontc•l)cpot IDSA, Inc. and/or I/d/b/aa The Home Depot, Inc. and/or Ild/h/a'I'hc Home Depot Mechamiesburg #11120, in an amount is excess of $50.000.00, plus interest and costs as permitted by law. Case'1:14-cv-02105-JEJ Document 1-2 Filed 11/03/14 Page 9 of 11 Respectfully submitted, • Herman A. Galley, .II, Esquire 96 South George Street Suite 430 York, Pennsylvania 17401 (717) 852-8379 — phone (717) 852-8268 — facsimile hag©martzaiidgailey.com ID #31097 Case 1:14-Ov-02105-JEJ Document 1-2 Filed 11/03/14 Page 10 of 11 VERIFICATION 1, Kenneth Dietz, Jr., do hereby verify that the facts set forth in the Complaint am true to the best dray knowledge, infounution .rid belief. I understand that false stateinents made herein are made subject to the penalties of the 18 Pa, C,S,A. 4904 relating to unsworn falsification to authorities. Date: I Oft. Case 1:14-cv-02105-JEJ Document 1-2 Filed 11/03/14 Page 11, of 11 VERIFICATION 1, Tina Diet, do hereby verify that the facts set ibrth in the Complaint are true to the best of my knowledge, information and belief, I understand that false statements made herein are made subject to the penalties of the 18 Pa. CSA. 4904 relating to unsworn falsification to authorities, Date: Ot...AA., iatti6---, Tina Dietz Case 1:14-cv-02105-JEJ Document 1-3 Filed 11/03/14 Page 1 of 2 Exhibit B Case 1:14-cv-02105-JEJ Document 1-3 Filed 11/03/14 Page 2 of 2 THE HARTWELL LAW OFFICES, LLP JAMES J, WALSH, ESQUIRE Direct Dial; (215) 972-5412 iih(chartweli1pw.com PLEASE NOTE OUR NEW ADDRESS October 30, 2014 Herman A. Gailey, III, Esquire Martz .(Sz Gailey LLP 96 South George Street, Suite 430 York, PA 17401 Reply To: Philadelphia Office One Logan Square 130 No. 18th Street, 26th Floor Philadelphia, PA 19103 Phone: (215) 972-7006 Facsimile: (215) 972-7008 RE: Kenneth Dietz, Jr., et al, v. Home Depot USA, Inc., et al, CCP Cumberland Cty.; No. 14-6109 Civil, Dear Mr. Galley: Per our telephone Conversation today this will confirm I, along with Kenneth M. Dubrow, Esquire, serve as counsel for Defendant, Home Depot U.S.A., Inc, ("Home Depot"), relative to the above matter. This will further confirm that you advised Plaintiffs value their claim in excess of $75,000.00, inclusive of interest and costs. Thank you for your attention herein. JJW/pmr Dietz (493W )/CorrospondoncelLtr to GaIloy 10.30.14 FLORIDA I MASSACHUSETTS I NEW JERSEY I NEW YORK I PENNSYLVANIA www.chutwelllaw.com Case 1:14-cv-02105-JEJ Document 1-4 Filed 11/03/14 Page 1 of 1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHILADELPHIA ) ss: AFFIDAVIT JAMES J. WALSH, ESQUIRE, being duly sworn according to law, deposes and says that he is the attorney for Defendants, Home Depot U.S.A., Inc. (misnamed above, Home Depot USA, Inc. and The Home Depot Mechanicsburg - #4120) and The Home Depot, Inc.; that, he has read the foregoing Notice and knows the contents thereof; that, he is authorized to make this Affidavit on behalf of Defendants; and, that the facts alleged in the Notice are true and correct to the best of his knowledge, information and b ))) ( 8-Y 3&-L1 aoi� NOTARIAL SEAL DORI CONWAY Notary Public PHILADELPHIA CITY, PHILADELPHIA COUNTY My Conimisalon Exalras Oat 3, 2015 ES J. ALSH, ESQUIRE Case 1:14-cv-02105-JEJ Document 1-5 Filed 11/03/14 Page 1 of 1 IN THE UNITED STATES DISTRCT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA KENNETH DIETZ, JR. and TINA DIETZ CIVIL ACTION v. NO. HOME DEPOT USA, INC. and/or JURY TRIAL DEMANDED t/d/b/a THE HOME DEPOT, INC. and/or : t/ d/ b/ a THE HOME DEPOT MECHANICSBURG - #4120 CERTIFICATE OF SERVICE I hereby certify that on November 3, 2014, a true and correct copy of Defendants' Notice for Removal of Action pursuant to 28 U.S.C. §1441 was served upon the following by United States first class mail, postage pre -paid, addressed as follows: Herman A. Ganey, III, Esquire Martz & Galley LLP 96 South George Street, Suite 430 York, PA _ 17401 THE CHARTWELL LAW OFFICES, LLP Dated: 11/03/14 BY : /s/JAMES J. WALSH Dietz (49301)/Pleadings/Notice of Removal JAMES J. WALSH, ESQUIRE, Attorney for Defendants, Home. Depot U.S.A., Inc. and The Home Depot, Inc.