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HomeMy WebLinkAbout15-0271 Supreme C© F nnsylvania COU AM, 0 leas For Prothonotary Use Only. jr CU Docket No- k1l County I WiLl I The informalion collected on this form is used solely for court administration purposes. This form does not supplement or replace thefiling and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S I@ Complaint El Writ of Summons rD1 Petition E [3Transfer from Another Jurisdiction [3Declaration of Taking C Lead Plaintiff's Name: Lead Defendant's Name: T ERIE INSURANCE EXCHANGE KAZ USA, INC. Are money damages requested? G Yes 0 No Dollar Amount Requested: ®within arbitration limits (check one) xi outside arbitration limits 0 N Is this a Class Action Suit? 0 Yes M No Is this an MDJAppeal? 0 Yes IM No A Name of Plaintiff/Appellant's Attorney: JESSE M. COHEN E3 Check here if you have no attorney(are a Self-Represented [Pro Sel 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 13 Intentional 0 Buyer Plaintiff Administrative Agencies OMalicious Prosecution M Debt Collection:Credit Card rl Board of Assessment 13Motor Vehicle E3Debt Collection:Other [3Board of Elections [3Nuisance Dept.of Transportation 13Premises Liability 8 Statutory Appeal:Other S x Product Liability(does not include 0 Employment Dispute: E mass tort) E3SIander/Libel/Defamation Discrimination 0 C [3 Other: Employment Dispute:Other Zoning Board T Other: I i Other: , o MASS TORT OAsbestos N n Tobacco M Toxic Tort-DES [3 Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS n Toxic Waste 0 Ejectment 0 Common Law/Statutory Arbitration B [3 Other: 0 Eminent Domain/Condemnation Declaratory Judgment 0 Ground Rent Mandamus 0 Landlord/Tenant Dispute B Non-Domestic Relations E3Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITYMortgage Foreclosure:Commercial 13 Quo Warranto Dental Partition Q Replevin [3 Legal Mi Quiet Title Other: E3Medical n Other: Other Professional: Updated 11112011 J. M. COHEN,LLC BY: JESSE M. COHEN,ESQ. Attorneys for Plaintiffj:�... " Identification No. 93020 1515 Market Street, Suite 1801 Philadelphia, PA 19102 Telephone: (215) 557-4470 - r jessecohen@imcohenllc.com IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY,PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o DONNA L. KORNBLUM and STEPHEN M. KORNBLUM 298 Smith Road : Shippensburg, PA 17257 NO. �Q Plaintiff, : vs. JURY TRIAL DEMANDED KAZ USA, INC. a/k/a d/b/a KAZ, INC. : 250 Turnpike Road Southborough, MA 01772 Defendant. NOTICE TO DEFEND-CIVIL 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 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 OA 32 South Bedford Street Carlisle, PA 17013 0KJ- PIIS, Telephone: (717) 249-3166 a )2k- 3)SWOO J.M.COHEN,LLC BY: JESSE M. COHEN,ESQ. Attorneys for Plaintiff Identification No.93020 1515 Market Street, Suite 1801 Philadelphia, PA 19102 Telephone: (215) 557-4470 jessecohen@imcobenllc.com IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA ERIE INSURANCE EXCHANGE a/s/o DONNA L. KORNBLUM and STEPHEN M. KORNBLUM NO. 298 Smith Road Shippensburg, PA 17257 Plaintiff, JURY TRIAL DEMANDED VS. KAZ USA, INC. a/k/a d/b/a KAZ, INC. 250 Turnpike Road Southborough, MA 01772 Defendant. COMPLAINT Plaintiff, Erie Insurance Exchange a/s/o Donna L. Kornblum and Stephen M. Kornblum, by and through its counsel, J.M. Cohen, LLC,hereby alleges as follows: PARTIES AND JURISDICTION 1. Plaintiff, Erie Insurance Exchange a/s/o Donna L. Kornblum and Stephen M. Kornblum (hereinafter"Erie"), is a corporation organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania with its principal place of business located at 100 Erie Insurance Place, Erie Pennsylvania. 2. At all times relevant hereto, Erie engaged in the business of, among other things, underwriting property insurance and was authorized to conduct business in the Commonwealth of Pennsylvania. 3. At all times relevant herein,Erie issued a policy of insurance to Donna L.Kornblum and Stephen M. Kornblum (hereinafter "Kornblum") that covered real and personal property located at 298 Smith Road, Shippensburg, Pennsylvania(hereinafter"Property"). 4. Defendant, KAZ USA, Inc. a/k/a d/b/a/ KAZ, Inc., (hereinafter "KAZ") is a corporation and existing under and by virtue of the laws of the Commonwealth of Massachusetts with its principal place of business located at 250 Turnpike Road, Southborough, Massachusetts. 5. At all times relevant hereto, KAZ engaged in the business of, among other things, manufacturing, distributing and selling humidifiers. 6. The Court has jurisdiction over the defendant in this matter as defendant regularly and systematically conducts business in the Commonwealth, by way of, inter alia, advertising its products for sale throughout the Commonwealth, selling and distributing its products in the Commonwealth, receiving the benefit of the sales of its products to consumers in the Commonwealth, and maintaining relationships with retailers and resellers of its products throughout the Commonwealth, all of which establish that defendant has purposely availed itself of the benefits and protections offered by this Commonwealth, and therefore subjecting defendant to the jurisdiction of the courts thereof. 7. Further,venue is proper in Cumberland County as the underlying fire and resulting damage which is the subject of this complaint occurred in Cumberland County, and the product was sold in Cumberland County. FACTUAL BACKGROUND 8. Prior to December 30,2013,Kornblum purchased a Vicks brand humidifier(Model No.: V4450) (hereinafter"the humidifier") for use at the Property. 9. On December 30,2013,a fire occurred at the Property causing significant damages to the dwelling and contents. 10. Specifically, the motor windings of the humidifier failed and caused the fire. 11. As a direct and proximate result of this fire loss,Plaintiff's insured sustained losses and damages, including damage to their building and personal property, as well as loss of use of the same. 12. Pursuant to its policy of insurance with the insureds, Erie has paid to its insureds, and on their behalf, the amount of$111,584.66, and has thereby become subrogated to the rights of the insureds to the extent of such payments. COUNT I -NEGLIGENCE 13. Plaintiff incorporates by reference all preceding paragraphs of this Complaint the same as if fully set forth hereinafter. 14. The above-described accident resulted solely from the negligence, carelessness, and recklessness of the Defendant. 15. Defendant had a duty to persons such as Plaintiff's insureds to exercise due care in their manufacture and sale of their products so as to avoid causing fire and other damages. 16. The fire loss of December 30, 2013, and the resultant damages were caused by the negligence and negligent acts and omissions of Defendant by and through its agents, representatives, workman, sub-contractors, and employees acting within the course and scope of their employment generally and as follows: a) Failing to properly manufacture, design and construct the humidifier; b) Failing to properly manufacture, design and construct the humidifier to ensure it was in good working order; c) Failing to warn customers and end users, such as Kornblum, of the foreseeable and serious risk of harm to persons and property posed by the humidifier and its propensity to fail; d) Placing a defective and dangerous humidifier into the stream of commerce; e) Failing to foresee the serious risk posed by the motor windings within the humidifier should they fail; f) Manufacturing a humidifier with motor windings which could overheat and fail in the course of ordinary use; g) Manufacturing a humidifier with motor windings which could not withstand ordinary and reasonable use; h) Manufacturing a humidifier with defective motor windings; i) Manufacturing a humidifier with improperly sealed motor windings; j) Manufacturing a humidifier with an improperly mounted motor; k) Manufacturing a humidifier with an improper or failed connection between the motor and other components of the humidifier; 1) Failure to provide sufficient and proper fuses to disconnect power to the humidifier in the event of a failure of the motor or other over current situation. 17. By virtue of the above-referenced conduct,acts and omissions,Defendant breached its duty of care to the Kornblums. 18. The fire loss of December 30, 2013, was a direct and proximate result of the Defendant's careless and negligent conduct, acts and/or omissions as averred above. 19. As a direct and proximate result of the fire loss, the Kornblums sustained damage to their dwelling, contents, and other fire related expenses in the amount of$111,584.66. 20. As a result of the subject fire loss, Plaintiff, Erie, has made payments of $111,584.66 to its insureds, the Kornblums, in accordance with the terms and conditions of its insurance agreement with the Kornblums. 21. By virtue of its payments to the Kornblums in accordance with the terms and conditions of the aforementioned insurance policy, Plaintiff, Erie, is now subrogated to the Kornblums' rights of recovery to the extent of payments made. WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the amount of$111,584.66,together with interest, costs,and such other relief as this Honorable Court deems just and proper under the circumstances. COUNT II - STRICT LIABILITY 22. Plaintiff incorporates by reference the foregoing paragraphs as though the same were more fully set forth at length herein. 23. The humidifier was unreasonably dangerous, defective and unsafe for its ordinary, foreseeable and intended use by reason of its propensity to fail during its ordinary, foreseeable and intended use. 24. Defendant manufactured, designed, marketed, sold and distributed the humidifier in an unreasonably dangerous, defective and unsafe condition, all as more fully set forth herein. 25. The failure of the humidifier on December 30, 2013, and the losses and damages suffered by Plaintiff s insureds were the direct and proximate result of the unreasonably dangerous, defective and unsafe condition of the humidifier manufactured, marketed, sold and distributed by Defendant. 26. The humidifier was unreasonably dangerous, defective and unsafe for its intended ordinary and foreseeable use as more fully set forth herein. 27. At the time of the accident alleged herein,the humidifier was in the same condition as when it left the possession and control of Defendant. 28. Plaintiff's insureds used the humidifier for the purpose and in the manner intended and expected by Defendant. 29. As a direct and proximate result of the fire loss, the Kornblums sustained damage to their dwelling, contents, and other fire related expenses in the amount of$111,584.66. 30. As a result of the subject fire loss, Plaintiff, Erie, has made payments of $111,584.66 to its insureds, the Kornblums, in accordance with the terms and conditions of its insurance agreement with the Kornblums. 31. By virtue of its payments to the Kornblums in accordance with the terms and conditions of the aforementioned insurance policy, Plaintiff, Erie, is now subrogated to the Kornblums' rights of recovery to the extent of the payments made. WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the amount of$111,584.66,together with interest,costs, and such other relief as this Honorable Court deems just and proper under the circumstances. COUNT III—BREACH OF WARRANTY 32. Plaintiff incorporates by reference the averments contained in the foregoing paragraphs as though the same were more fully set forth at length herein. 33. Defendant expressly and/or impliedly warranted that the humidifier was of merchantable quality, fit, safe and in proper condition for the ordinary use for which it was designed. 34. The Kornblums relied on Defendant's skill, judgment and implied warranty of merchantability, as well as the other warranties made by Defendant. 35. Defendant breached the above-mentioned express and implied warranties of merchantability and fitness for a particular purpose because the humidifier was not reasonably fit for its intended use and was not of merchantable quality. 36. Defendant's breach of the express and implied warranties of merchantability and fitness for a particular purpose was the direct and proximate cause of the Kornblums' injuries and damages. 37. As a direct and proximate result of the foregoing negligence and carelessness of Defendant, the Kornblums were severely and permanently injured as more fully set forth herein. WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the amount of$111,584.66,together with interest, costs,and such other relief as this Honorable Court deems just and proper under the circumstances. Respectfully submitted, I M. COHEN, LLC BY: S M. COHEN,ESQ. A ID No. 93020 1515 Market Street Suite 1801 Philadelphia, PA 19102 P: (215) 557-4470 F: (215) 405-3735 j essecohengi mcohenllc.com Attorneys for Plaintiff Dated: January 12, 2015 VERIFICATION Is BETH SHULTZ, am°a SUBROGATION SPECIALIST with Erie Insurance Exchange;. the Plaintiff in the within action. 1_Hereby verify that the statements in the foregoing Complaint are true and correct to the best of my knowledge, information and.belief. I understand that the statements in the said Complaint are made subject to the penalties of'Pa.C.S. §4904 relating to unsworn falsification to authorities. BE ' Dated.January 12,2015