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Home My WebLink About05-3003 , IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 01) - ~:) v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED 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 of 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIA nON 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 NOTICIA USTED HA SIDO DEMANDADA EN CORTE. Si usted quiere defenderse de e stas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificaci6n. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificaci6n y por cualquier queja 0 alivio que es pedido en la petici6n de demanda. U sted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE EST A DEMANDA A UN ABODGADO INMEDIA T AMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELFFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRIT A ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717)249-3166 1) ~fl'1, WCLl1:lvr Nichole M. Walters Supreme Court No. 84478 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 2 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 0..5 - .3Qp~ v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. Defendant JURY TRIAL DEMANDED Gable Associates Hearing Aid Services Complaint Plaintiff Quentin Cooper, by and through his attorneys, Nichole M. Walters, Esq. and The Elder Law Clinic of The Pennsylvania State University Dickinson School Law state the following in support of this Complaint: Statement of Facts L Plaintiff is Quentin Cooper, a sui juris adult, residing at 561 Cambria Avenue, Harrisburg, Dauphin County, Pennsylvania, 17111. 2. Defendant Siemens Incorporated is a Delaware Corporation with a service address of clo Corporation Service Company, as Registered Agent for Service, 2704 Commerce Drive, Harrisburg, Pennsylvania 17110. 3. Defendant Gable and Associates, is a Pennsylvania Corporation having a business address of 3461 Market Street, Suite 105, Camp Hill, Pennsylvania 17011. 4. Jurisdiction and venue are proper in that the actions referred to throughout this pleading occurred in Cumberland County, Pennsylvania, and the sale of the item to Plaintiff occurred in Cumberland County, Pennsylvania. 3 5. In 195 I, Plaintiff sustained an occupational injury as a Pennsylvania State Policeman, resulting in permanent, bilateral hearing impairment. 6. In the fall of2000, Gable Associates Hearing and Services ("Gable Associates"), a local hearing aid provider, performed hearing tests on Plaintiff. 7. Gable Associates recommended to the Plaintiff the Siemens PRISMA Lifesound ITE hearing aid system ("Hearing Aid"), model number 005025398, which works as a dual system requiring both the left and right ear piece to work simultaneously to be effective. 8. On, or about, October 19, 2000, following the recommendation of Gable Associates, the Plaintiff purchased the Hearing Aid for $5500. 9. The purchase came with a two-year warranty. A true and correct copy of the purchase contract is attached hereto as Exhibit "A" and incorporated by reference. 10. The general description of the warranty is located in Siemens' General Information brochure. A true and correct copy of the description is attached and labeled as Exhibit "B", hereto and incorporated by reference. II. On, or about, February I, 200 I the left Hearing Aid began having episodes where it would fail to turn on. Ifthe Hearing Aid did turn on, it would whistle for at least the first hour of use. 12. The Plaintiff took the left Hearing Aid to Gable Associates for repair and, in-turn, Gable Associates sent it to Siemens for repair service. 13. On February 27, 2002, the Plaintiff picked up the left Hearing Aid from Gable Associates and was advised by Gable Associates that it was in the Plaintiff s best interests to purchase a Waxman 2000, a vacuum device that helps to remove 4 expired July 31, 2004. A true and correct copy of the receipt for the warranty is attached hereto as "Exhibit D" and is hereby incorporated by reference. 22. On July 21,2003, the Plaintiff called the Siemens service center but was unable to hear the representative because he did not have functional hearing aids. Plaintiffs spouse spoke with the customer representative, "Meghan." 23. Despite being provided with the serial numbers of the Hearing Aids, the customer service representative made no apparent attempt to find information regarding the Plaintiffs purchase. 24. When the Plaintiffs spouse asked about a possible refund for the Hearing Aids, the customer service representative told the Plaintiffs spouse to "see a therapist." 25. On November 3, 2003, the casing door broke off of the left Hearing Aid. 26. The left Hearing Aid with a broken casing door required service repair and was refitted with reconditioned parts. 27. To date, the Siemens Hearing Aid system that Plaintiff bought from Gable and Associates has not worked in a manner it was purported to and has required numerous repairs. Further, despite numerous repairs made while under warranty, the Hearing Aid system continues to fail to operate properly and is nonfunctional for the Plaintiff. COUNT I: Breach of Express Warranty of Merchantability 28. Paragraphs 1 through 27 are incorporated by reference. 6 29. Siemens states in their General Information brochure that Siemens products are internationally known for their "superior performance and durability." See Exhibit B. 30. The Siemens' brochure states that they are the world's largest manufacturer of hearing aids. See Exhibit B. 31. The Siemens' brochure expressly states that their merchandise provides superior performance and that the model purchased by Plaintiff met strict quality assurance requirements. See Exhibit B. 32. Plaintiffs decision to purchase the $5500 Hearing Aids was based upon Gable Associates recommendation that the model was the "top-of-the-line" and on Siemens' reputation for quality instruments. 33. Siemens' dual-system Hearing Aid failed to meet its ordinary purpose of enabling Plaintiff to hear better because of the system's frequent failure to work and need of repair. 34. The Hearing Aids purchased by Plaintiff required frequent and repeated repair, and during some repairs, were rebuilt with both reconditioned and new parts. 35. Despite frequent service and repair, Plaintiffs Hearing Aids would intermittently stop working, would whistle for lengthy periods oftime, and failed to work at all when Plaintiff was using a telephone. 36. Plaintiffs Hearing Aids have never performed as promised and he has never been able to use them in a consistent and reliable manner in order to maximize his hearing ability. 7 37. Because of continued problems with the Hearing Aid system, Plaintiff purchased additional extended warranties for each hearing aid. 38. The extended warranty for the left Hearing Aid was purchased on May 5, 2003 and the extended warranty for the right Hearing Aid was purchased on July 18, 2003. See Exhibit C and D, respectively. 39. Plaintiff was told by Gable Associates that the extended warranties purchased on May 5, 2003 (for the left Hearing Aid) and on July 18,2003 (for the right Hearing Aid) would fall under the same provisions as that of the original warranty. 40. Siemens breached its express warranty of merchantability by repeatedly failing to repair or replace Plaintiff's faulty Hearing Aids to meet the "performance specifications of the model." See Exhibit B. 41. Siemens breached its express warranty of merchantability by failing to provide a quality and reliable dual-system hearing aid that provided a superior performance. 42. Gable Associates breached its express warranty of merchantability by selling to Plaintiff what they described as a "top-of-the-line" hearing aid system that would improve his hearing. WHEREFORE, Plaintiff Quentin Cooper requests that this Honorable Court enter judgment against Siemens Hearing Instruments, Inc. in an amount in excess of$6080 ($5000 for original hearing aids, $500 for original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy deemed just and appropriate. 8 COUNT II: Breach ofImplied Warranty of Merchantability 43. Paragraphs 1 through 42 are incorporated by reference. 44. In October 2000, the Plaintiff bought from Gable Associates the Siemens dual- system Hearing Aids for the ordinary purpose of improving his ability to hear. . 45. The Hearing Aids malfunctioned repeatedly during and beyond the first warranty, which expired in 2002. 46. Plaintiff was granted an additional six month warranty at no charge once the original warranty expired because the Hearing Aids continued to malfunction and frequently required servicing. 47. The Hearing Aids continued to malfunction and failed to work after the six month warranty expired. 48. Plaintiffs left Hearing Aid required further repair in May 2003. On May 23, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty. See Exhibit C. 49. The twelve month warranty purchased for the left Hearing Aid on May 23, 2003 expired on June 6, 2004. 50. Plaintiff s right Hearing Aid required further repair in July 2003. On July 18, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty, the receipt of which is labeled as Exhibit D. 51. The twelve month warranty for the right Hearing Aid purchased on July 18, 2003 expired on July 31, 2004. 9 52. The Siemens Hearing Aid system sold to Plaintiff by Gable Associates failed to meet the ordinary purpose for which such goods are used; namely, to minimize hearing impairment through a reliable and workable instrument. a. At least one of the Hearing Aids frequently stops working while resting in the ear and because the hearing aids are a dual-system, when one piece stops working, the other cannot function; b. The Siemens Hearing Aids Plaintiff purchased have worked erratically, if at all, and have required extensive servicing and repair; c. The Hearing Aids, even after multiple repairs, emit a high-pitched noise when used while talking on the telephone; d. Because of this high-pitched noise, Plaintiff has never been able to use the Hearing Aids while on the telephone; e. Due to the extensive number of repairs and service time required to attempt to make the Hearing Aids operational, Plaintiff was unable to have any use of the hearing system for successive weeks at a time. 53. Plaintiffrelied on the promissory language of Siemens' General Information brochure in his decision to purchase what was purported to be exceptional quality hearing aids. 54. Further, in his decision to purchase the Siemens' dual-system Hearing Aids, Plaintiff relied on the sales statements by Gable Associates that the Siemens' brand was a "top-of-the-line" model. 55. The Hearing Aids have necessitated repair on at least twelve separate occasions, and have not met the standards described in the General Information brochure. 10 56. Defendants have breached the implied warranty of merchantability of the Hearing Aids sold to Plaintiff because they have malfunctioned since shortly after purchase and have failed to assist the Plaintiff in the manner to which they were intended, namely, to help the Plaintiff hear better. WHEREFORE, Plaintiff Quentin Cooper requests that this honorable court enter judgment against Siemens Hearing Instruments, Inc. in an amount in excess of $6080 ($5000 for original hearing aids, $500 for the original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy deemed just and appropriate. COUNT III: PENNSYL VANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 57. Paragraphs I through 56 are incorporated by reference. 58. At all times relevant hereto, Defendants were engaged in trade or commerce as defined in the Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S. S 201-3. 59. The Plaintiff bought from Gable Associates the dual-system Hearing Aids manufactured by Siemens for the particular purpose of improving his specific type of hearing impairment. 60. The Plaintiffs purchase of the Hearing Aids is a consumer transaction. 61. The Defendant's actions constitute unfair trade practices as defined by 73 Pa.C.S. S 201-2(4) and 73 Pa.C.S. S 201-3 in that the Defendants: a. represented that the hearing aids were of a particular standard, quality, or grade, when it was of another; 11 b. made repairs, improvements or replacements to the property of the Plaintiffs Hearing Aids of a nature or quality inferior to the standard specified in the extended warranty. 62. Defendant's actions are also unfair or deceptive acts or practices as defined by regulations promulgated under 73 P.S. 9201-3.1 in that they knew or should have known that repair and service done on the Plaintiff's Hearing Aides was of a nature or quality inferior to the standard specified in the brochure, yet failed to disclose this defect to the Plaintiff. 63. The Plaintiff relied upon Gable Associates to sell him a Hearing Aid system that would reliably turn on, be free from high-pitched noise, and provide, at a minimum, some measure of improvement to his hearing impairment. 64. The Plaintiffs Hearing Aid system has failed to work reliably, frequently emits a high-pitched noise, and has not served as reliable means of enhancing the Plaintiffs ability to hear. 65. The Plaintiffs hearing aid system has required servicing on at least twelve separate occasions. 66. During each separate service repair, the Plaintiff was without the use of any hearing aid assistance because the dual-system he purchased requires each hearing aid to function simultaneously. 67. Plaintiff complied with the Siemens warranty restriction and had the hearing aids serviced only by authorized Siemens service centers, namely Gable Associates. 12 68. Siemens General Information brochure which accompanied the Hearing Aids, attested to Siemens commitment to 85 years of manufacturing and expertise in providing "superior performance" hearing aid products. See Exhibit B. 69. Siemens General Information brochure also notes that each hearing instrument is recognized for "excellent electroacoustic characteristics" and each must meet "strict quality assurance requirements" before leaving Siemens' premises. See Exhibit B. 70. Siemens General Information brochure also stated that, when hearing aids were to be serviced for repair, all covered parts were to be repaired or replaced with new or reconditioned components to meet the specifications of the model being serviced. See Exhibit B. 71. Plaintiffs Hearing Aids required repeated service repairs, and on occasion, had reconditioned parts used to substitute broken ones. 72. Despite repairs and replacement of parts, the quality of the Hearing Aids continued to be inferior to, and below the standard of, that promised in the brochure. 73. Siemens' failure to adequately repair the Hearing Aids necessitated Plaintiffs purchase of an extended warranty for each hearing piece. 74. The Plaintiff has been subject to multiple damages secondary to the failure of the nonfunctional Hearing Aids, to wit: a. The Plaintiff has paid, at a minimum, $6800 for nonfunctional equipment that has not enabled him to hear better to any degree. 13 b. Plaintiff has suffered loss of enjoyment due to the hearing aids not working and better enabling him to hear: 1. The Plaintiff must use the closed captioning system when watching television because of his inability to hear without assistance. 2. The Plaintiff is unable to have proper telephone conversations because he cannot hear through the receiver. 3. The Plaintiff made numerous inconvenient and time-consuming trips to Gable Associates to have the hearing aids serviced. WHEREFORE, Plaintiff Quentin Cooper respectfully requests that this Honorable Court enter judgment against Defendant Siemens Hearing Instruments, Inc. in an amount in excess of $6080, plus treble damages and attorney fees as permitted by 73 Pa. C.S.A. 9201-9.2, costs of suit, and any other remedy deemed just and appropriate. COUNT IV: Breach of Express Warranty of Merchantability 75. Paragraphs 1 through 27 are incorporated by reference. 76. Siemens states in their General Information brochure that Siemens products are internationally known for their "superior performance and durability." (Exhibit B) 77. The Siemens' brochure states that they are the world's largest manufacturer of hearing aids. See Exhibit B. 14 78. The Siemens' brochure expressly states that their merchandise provides superior performance and that the model purchased by Plaintiff met strict quality assurance requirements. See Exhibit B. 79. Plaintiffs decision to purchase the $5500 Hearing Aids was based upon Gable Associates recommendation that the model was the "top-of-the-line" and on Siemens' reputation for quality instruments. 80. Siemens' dual-system Hearing Aid failed to meet its ordinary purpose of enabling Plaintiff to hear better because of the system's frequent failure to work and need of repair. 81. The Hearing Aids purchased by Plaintiff required frequent and repeated repair, and during some repairs, were rebuilt with both reconditioned and new parts. 82. Despite frequent service and repair, Plaintiffs Hearing Aids would intermittently stop working, would whistle for lengthy periods of time, and failed to work at all when Plaintiff was using a telephone. 83. Plaintiffs Hearing Aids have never performed as promised and he has never been able to use them in a consistent and reliable manner in order to maximize his hearing ability. 84. Because of continued problems with the Hearing Aid system, Plaintiff purchased additional extended warranties for each hearing aid. 85. The extended warranty for the left Hearing Aid was purchased on May 5, 2003 and the extended warranty for the right Hearing Aid was purchased on July 18, 2003. See Exhibit C and D, respectively. 15 . 86. Plaintiff was told by Gable Associates that the extended warranties purchased on May 5, 2003 (for the left Hearing Aid) and on July 18,2003 (for the right Hearing Aid) would fall under the same provisions as that of the original warranty. 87. Siemens breached its express warranty of merchantability by repeatedly failing to repair or replace Plaintiffs faulty Hearing Aids to meet the "performance specifications of the model." See Exhibit B. 88. Siemens breached its express warranty of merchantability by failing to provide a quality and reliable dual-system hearing aid that provided a superior performance. 89. Gable Associates breached its express warranty of merchantability by selling to Plaintiff what they described as a "top-of-the-line" hearing aid system that would improve his hearing. WHEREFORE, Plaintiff Quentin Cooper requests that this Honorable Court enter judgment against Gable Associates in an amount in excess of $6080 ($5000 for original hearing aids, $500 for original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy deemed just and appropriate. COUNT V: Breach oflmplied Warranty of Merchantability 90. Paragraphs I through 42 are incorporated by reference. 91. In October 2000, the Plaintiff bought from Gable Associates the Siemens dual- system Hearing Aids for the ordinary purpose of improving his ability to hear. 92. The Hearing Aids malfunctioned repeatedly during and beyond the first warranty, which expired in 2002. 16 .. 93. Plaintiff was granted an additional six month warranty at no charge once the original warranty expired because the Hearing Aids continued to malfunction and frequently required servicing. 94. The Hearing Aids continued to malfunction and failed to work after the six month warranty expired. 95. Plaintiffs left Hearing Aid required further repair in May 2003. On May 23, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty. See Exhibit C. 96. The twelve month warranty purchased for the left Hearing Aid on May 23, 2003 expired on June 6, 2004. 97. Plaintiffs right Hearing Aid required further repair in July 2003. On Julyl8, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty, the receipt of which is labeled as Exhibit D. 98. The twelve month wan-anty for the right Hearing Aid purchased on July 18, 2003 expired on July 31, 2004. 99_ The Siemens Hearing Aid system sold to Plaintiff by Gable Associates failed to meet the ordinary purpose for which such goods are used, namely, to minimize hearing impairment through a reliable and workable instrument; To wit: a. At least one of the Hearing Aids frequently stops working while resting in the ear and because the hearing aids are a dual-system, when one piece stops working, the other cannot function; b. The Siemens Hearing Aids'?laintiffpurchased have worked erratically, if at all, and have required extensive servicing and repair; 17 . c. The Hearing Aids, even after multiple repairs, emit a high-pitched noise when used while talking on the telephone; d. Because ofthis high-pitched noise, Plaintiff has never been able to use the Hearing Aids while on the telephone; e. Due to the extensive number of repairs and service time required to attempt to make the Hearing Aids operational, Plaintiff was unable to have any use of the hearing system for successive weeks at a time. 100. Plaintiff relied on the promissory language of Siemens' General Information brochure in his decision to purchase what was purported to be exceptional quality hearing aids. 10I. Further, in his decision to purchase the Siemens' dual-system Hearing Aids, Plaintiff relied on the sales statements by Gable Associates that the Siemens' brand was a "top-of-the-line" model. 1 02. The Hearing Aids have necessitated repair on at least twelve separate occasions, and have not met the standards described in the General Information brochure. 1 03. Defendants have breached the implied warranty of merchantability of the Hearing Aids sold to Plaintiff because they have malfunctioned since shortly after purchase and have failed to assist the Plaintiff in the manner to which they were intended, namely, to help the Plaintiff hear better. WHEREFORE, Plaintiff Quentin Cooper requests that this honorable court enter judgment against Gable Associates, in an amount in excess of$6080 ($5000 for original hearing aids, $500 for the original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy deemed just and appropriate. 18 . COUNT VI: PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 104. Paragraphs 1 through 56 are incorporated by reference. 105. At all times relevant hereto, Defendants were engaged in trade or commerce as defined in the Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S. ~ 201-3. 106. The Plaintiff bought from Gable Associates the dual-system Hearing Aids manufactured by Siemens for the particular purpose of improving his specific type of hearing impairment. 107. The Plaintiff's purchase of the Hearing Aids is a consumer transaction. 108. The Defendants actions constitute unfair trade practices as defined by 73 Pa.C.S. ~ 201-2(4) and 73 Pa.C.S. ~ 201-3 in that the Defendants: a. represented that the hearing aids were of a particular standard, quality, or grade, when it was of another; b. made repairs, improvements or replacements to the property of the Plaintiffs Hearing Aids of a nature or quality inferior to the standard specified in the extended warranty. 109. Defendants actions are also unfair or deceptive acts or practices as defined by regulations promulgated under 73 P.S. ~ 201-3.1 in that they knew or should have known that r(;pair and service done on the Plaintiff's Hearing Aides was of a nature or quality inferior to the standard specified in the brochure, yet failed to disclose this defect to the Plaintiff. 19 ~ 110. The Plaintiff relied upon Gable Associates to sell him a Hearing Aid system that would reliably turn on, be free from high-pitched noise, and provide, at a minimum, some measure of improvement to his hearing impairment. 111. The Plaintiffs Hearing Aid system has failed to work reliably, frequently emits a high-pitched noise, and has not served as reliable means of enhancing the Plaintiff s ability to hear. 112. The Plaintiffs hearing aid system has required servicing on at least twelve separate occasions. 113. During each separate service repair, the Plaintiff was without the use of any hearing aid assistance because the dual-system he purchased requires each hearing aid to function simultaneously. 114. Plaintiff complied with the Siemens warranty restriction and had the hearing aids serviced only by authorized Siemens service centers, namely Gable Associates. 115. Siemens General Information brochure which accompanied the Hearing Aids, attested to Siemens commitment to 85 years of manufacturing and expertise in providing "superior performance" hearing aid products. See Exhibit B. 116. Siemens General Information brochure also notes that each hearing instrument is recognized for "excellent electro acoustic characteristics" and each must meet "strict quality assurance requirements" before leaving Siemens' premises. See Exhibit B. 117. Siemens General Information brochure also stated that, when hearing aids were to be serviced for repair, all covered pacts were to be repaired or replaced with 20 . new or reconditioned components to meet the specifications of the model being serviced. See Exhibit B. 118. Plaintiffs Hearing Aids required repeated service repairs, and on occasion, had reconditioned parts used to substitute broken ones. 119. Despite repairs and replacement of parts, the quality of the Hearing Aids continued to be inferior to, and below the standard of, that promised in the brochure. 120. Siemens' failure to adequately repair the Hearing Aids necessitated Plaintiffs purchase of an extended warranty for each hearing piece. 121. The Plaintiff has been subject to multiple damages secondary to the failure of the nonfunctional Hearing Aids, to wit: a. The Plaintiff has paid, at a minimum, $6800 for nonfunctional equipment that has not enabled him to hear better to any degree; b. Plaintiff has suffered loss of enjoyment due to the hearing aids not working and better enabling him to hear: 1) The Plaintiff must use the closed captioning system when watching television because of his inability to hear without assistance; 2) The Plaintiff is unable to have proper telephone conversations because he cmmot hear through the receiver; 3) The Plaintiff made numerous inconvenient and time-consuming trips to Gable Associates to have the hearing aids serviced. WHEREFORE, Plaintiff Quentin Cooper respectfully requests that this HonQ-'lble Court enter judgment against Defendant Gable Associates in an amount in excess of 21 .. $6080, plus treble damages and attorney fees as permitted by 73 Pa. C.S.A. S 201-9.2, costs of suit, any other remedy deemed just and appropriate Dated: June 10,2005 "M..oI.I -'/71. [).) flH . L4 Nichole M. Walters Supreme Court Number 84478 The Elder Law Clinic The Dickinson School of Law of The Pennsylvania State University 150 South College Street Carlisle, P A 17013 (717) 240-5216 22 ~ .. "'t. GABLE ASSOCIATES - . ATRIUM WEST. SUm: 105. 3461 MARKET STUET CAMP BILL, PA. 17011 PH. 717-'737-4100 ~EPT. OF HEALTH tt)':GlSIRATl,QN 1#; 10,>> DISCt.9SUBl.QOCUl\1el: Fees ror the hearing aid .1Id servieeslprocedura are shown. aad appficable aDIOlInts are listed in either tile Refundable or Not Refuadable column. NOT ITEM OR SERVICE PRICE REFUNDABLE REFUNDABLE Client History $ S S Hearing Screening: (1IIdudes simpUfied puretone air ~udio. te8tia1 I 4800 c\ $ S $ Hearing Evaluation: (lachules aU antiul[ required by law.) S S S Ear Impression S S . . S , Hearing Aid: (1Bdudes earmold. if . applicable.) MuiJDum caecellatioD ree is RT S 2 . 750. 00 S 2.600.00 S150.00 10% or 5150.00 wllidafNer fa Jess. .Per Hearing Aid LT $ 2.750.00 $ 2 . 600. 00 $150.00 FittingJDispeDSing S S S Accessories .' (S . S $ $ . Total $5.500.00 $ 5,200.00 $300.00 I HA VI: READ AND UNDERSTAND THIS STATEMENT AND ANY QUESTIONS I HAD ABOUT IT WERE ANSWERED TO MY SATISFACTION. III ..e4 ......- . . wldlill JIt Up S 5.200.00 II/llZ/oo ATUU 10 Ii 00 DATE 10/19/00 DATE 10/19/00 DATE CllSTOMU Quentin Cooper ~7{~4 REGISTLUlT'S SIGNATlJIU: "Ji1lANKDISCLOSUV421W / > if . ~ , . -:iABLE ASSOC\l\ TES ATRIUM WEST. SUITE 185, 3461 MARKET STREET CAMP HILL, PA. 17011 PH. 717-737-4800 PA~: Ouen~in H. Canner ~ Si@m~nR TwinMi~ systfltm ~ prisma LifeSound ITE with ~~~l 00S025398L & 00S025398R WIITlIPIY 2 yrs. J..- & ".-.,. 2 yrs. - L -(la1'lle~ 1 yr. Saua Siemens ItqNJIia $ 300.00 ...-~_..titMc $5.200.00 T....C. $5.500.00 ......... nurilr"'pl' &1 ~ N__fId'uod~ ...... S300. 00 11/1:J/OO Amoul,.f T1''td If......lIid(.) ilI.-.-" ~-.....r1I' widIlIa38-.,. 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All Rights Reswved Protected by one or more of the following plllents and other U.s. and Foreign patents pending 5,915,031; 4,953,215; 4,689,818; 5,1\0,810: 5.&16.621; 5,448,644; 4.987.597; 5.835,606; 4.947.433; 5.199.095; 4,750.201; 5,404,408; 5,835,6\ 1; 5.912.911; 4,845,757; 5,796,848; 5,724.431; 6,654,530: 5,613.008; 5,524.150; 5,378,933; 4.852,175: 4.815,140; 5,708,720; 5,341,433; 5.265,168,5,768.397; 4,763,752; 5.875..254: 5,889,814 03115799 6100 HR 22P1S315OK SHl/0395&(l . ' ! (ft~ (ftW~ W(.).~ ~>&- c a: ~ S! >>J :g g ~ ~<C ~i~f ~il! ~~I :c i ~B^' M ~ \' ~i\ 10/ o \' -t s: ~ ~ l qI ',1, ~~ () " () -~. 0 f~ 2 e ~ (, <J -0 -0 !!' (5 -0 S <2 V) <( ~ 1i~ ~. "'" ~ '\:.~ :::\: ~ ,,> ~ " ~ '{) "+ -'t~ ~ ~ ~ ~'- ~ ~ . '~ .~ ~ ~ t.~.~~ ~ ~~~~ "':l-= . <;- ~ ~ :s ~ o c ~ l~\ . ~~;::l. vc C1ai i~~ I :;:@ll. I , . . ~ -- -- - u____n n 01 ~ "'- \: 0~ , ..t--.. '{: I!:!_f::' t3 ~>&p 4 a: ~ OBh~ ~ --. \) " !ij~ ~~. ~ ~ ~ d~ ~ ~ --.0: ~~l! . c)~ c '" "~ . . ,~ r-.. 0 \,~ ~~ ~!I l ....~ . ~ <:i . \. t';D ~ 0.. . 'lJ d . " :z:::::; ci ~ d ,-t'li, ..,.,. ~ z to ~. ~ ~~):t~ N "D <5 . 00 . 1! " o::::t c E 2 . 0 0 !l ~ ;; "D E " "0 "0 ~ 0; ti 0 '" "0 " U " '0 ~ .. .> <rOD I . ~ Verification I verify that the statements ma~in this Complaint are true and correct. I understand that false statements herein are mad subject to the penalties of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities. Date: June 10,2005 <:~~~ ;:+ Quentin Cooper f ~ (;"' ~ -C.. ~ ~ + <J\ "" ~ ~ o --\ ~"".-. -f3rU\ L~~ :..1 @ q (;;: ....' c?- 5-), c,:: €;;~ \ t-~ ~ ..... ""f:-n f1~\i'=~ ~~.~~~) o ~,__, '~l. -} ~ '~A'.;;~ r:-:) =< r.,,) N IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY QUENTIN COOPER, Plaintiff NO. 05-3003 Vs. CIVIL ACTION - LAW SIEMENS HERING INSTRUMENTS, INC., and GABLE ASSOCIATES HEARING AID SERVICES, JURY TRIAL DEMANDED Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter the appearance of Buzgon Davis Law Offices whose address is 525 South Eighth Street, P.O. Box 49, Lebanon, Pennsylvania 17042-0049, as attorneys for Gable Associates Hearing Aid Services, the Defendant, in the above-captioned case. BUZGON DAVIS LAW OFFICES DATE: July 5, 2005 BY: SCOTT L GOBLE, ESQUIRE Atto I.D~8{)8 525 South Eighth Street P.O. Box 49 Lebanon, P A 17042-0049 (717) 274-1421 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY QUENTIN COOPER, Plaintiff NO. 05-3003 Vs. CIVIL ACTION - LAW SIEMENS HERING INSTRUMENTS, INC., and GABLE ASSOCIATES HEARING AID SERVICES, JURY TRIAL DEMANDED Defendant AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) I, Janelle K. Worcester, an employee of the law firm ofBuzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, Gable Associates Hearing and Services, being duly sworn according to law, depose and say that I mailed on July 7, 2005, for filing in the Office of the Prothonotary of Cumberland County, the original PRAECIPE FOR ENTRY OF APPEARANCE and that I mailed, by First Class mail, in a postpaid envelope, a true and correct copy to Nichole M. Walters, Esquire, The Elder Law Clinic, The Dickinson School of Law of the Pennsylvania State University, ]50 South College Street, Carlisle, Pennsylvania] 7013, Attorney for Plaintiff, and Siemens Hearing Instruments, Inc., c/o Corporation Service Company, 2704 Commerce Drive, Harrisburg, Pennsylvania 17110, Defendant. Sworn to and subscribed before me this 7th day ofJ y, A.D., 2005. J COMMONWE~~~~_ N/A Amanda Lee Snader, NOlaIy Pub!c aty Of Lebanon, Lebanon My Commission ExpirasJan~ Member. PenmJylvenla ASSOCiation of Notaries o c ;-:.;. ....,..,...,, fi~lrA ;:?: } -,/. if) -<, ~c '"p":;(-- '2.;-' )><:: ~ --- ,..., = = "" <- c:: .- o -n 'i':!J rn,~ -om :DO c) ~ :lQ 3+' l:...t5 (srn -. '" '"':) ::< :rn :::.: U1 .....l iIJ,,<ni,dSt:>t.: Farm il'~,,(jabk \1ulrlng AhJ\Ans\'\'a hl C\\mplaim,do\; - ;-)i'J, i iOS 1:46 PM IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY QUENTIN COOPER, Plaintiff NO. 05-3003 Vs. CIVIL ACTION - LAW SIEMENS HEARING INSTRUMENTS, INC., and GABLE ASSOCIATES HEARING AID SERVICES, JURY TRIAL DEMANDED Defendants NOTICE TO PLEAD To Plaintiff: Quentin Cooper You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. ANSWER, NEW MATTERMffl NEW MATTER PURSUANT TO PA.R..C.P. 2252(d) OF GABLE ASSOCIATES HEARING Am SERVICES AND NOW, comes the Defendant, Gable Associates Hearing Aid Services, by its attorneys, Buzgon Davis Law Offices, and files this Answer and New Matter, respectfully averring as follows 1. ANSWER 1. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted. 4. Denied. The averments of paragraph 4 set forth conclusions of law to which no response is required. 5. Admitted upon information and belief. 6. Admitted. 7. Denied. 8. Admitted in part and denied in part. It is admitted that Gable Associates made that specific recommendation. However, it is admitted that Plaintiff purchased a hearing aid from Gable Associates. 9. Admitted upon information and belief. 10. Admitted upon information and belief. II. Admitted in part and denied in part. It is admitted that Plaintiff experienced some difficulties with the hearing aids. 12. Admitted. 22. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 22, strict proof being demanded at trial. 23. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 23, strict proof being demanded at trial. 24. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 24, strict proof being demanded at trial. 25. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 25, strict proof being demanded at trial. 26. Admitted upon information and belief. 27. Denied. COUNT I Breach of Exoress Warrantv of Merchantabilitv 28. The answers to paragraphs I through 27 above are incorporated herein by reference as if textually set forth at length. -2- 29. The statements are set forth in documents in writing and speak for themselves. 30. The statements are set forth in documents in writing and speak for themselves. 31. The statements are set forth in documents in writing and speak for themselves. 32. Denied. After reasonable investigation, answering Defendant is without information sufficient to respond to the averments of paragraph 32, strict proof being demanded at trial. 33. Denied. After reasonable investigation, answenng Defendant is without information sufficient to respond to the averments of paragraph 33, strict proof being demanded at trial. 34. Denied. After reasonable investigation, answering Defendant is without information sufficient to respond to the averments of paragraph 34, strict proof being demanded at trial. 35. Admitted in part and denied in part. It is admitted that Plaintiff experienced difficulties with his hearing aid. However, upon information and belief, the difficulties Plaintiff experienced are the direct result of his own physical condition, i.e,. his generation of ear wax which interfered with the operation of the units. 36. Denied. 37. Admitted. 38. Admitted upon information and belief. 39. Denied. 40. Denied. The averments of paragraph 40 are directed to other Defendants. 41. Denied. The averments of paragraph 41 are direct{:d to other Defendants. -3- 42. Denied. The averments of paragraph 42 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiff's Complaint with prejudice. COUNT II Breach of Implied Warrantv of Merchantabilitv 43. The answers to paragraphs I through 43 above are incorporated herein by reference as if textually set forth at length. 44. Admitted. 45. Denied. 46. Admitted in part and denied in part. It is admitted that Plaintiff was provided an extended warranty. It is denied that said warranty was granted for the reasons stated. 47. Denied. 48. Admitted. 49. Admitted upon information and belief. 50. Admitted upon information and belief. 5!. Admitted. 52. Denied. The averments of paragraph 52(a) through (e) set forth conclusions of law to which no response is required. 53. Denied. The averments of paragraph 53 are directed to other Defendants. 54. Denied. -4- 55. Denied. The averments of paragraph 55 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 56. Denied. The averments of paragraph 56 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. COUNT III Pennsvlvania Unfair Trade Practices and Consumer Protection Law 57. The answers to paragraphs I through 56 above are incorporated herein by reference as iftextually set forth at length. 58. Denied. The averments of paragraph 58 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 59. Admitted upon information and belief. 60. Denied. The averments of paragraph 60 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 61. (a)-(b) Denied. 62. Denied. 63. Denied. 64. Denied. -5- 65. Admitted in part and denied in part. It is admitted that Plaintiff's hearing aid system required servicing. It is denied that said servicing was the result of any improper conduct on the part of answering Defendant. 66. Denied. After reasonable investigation, answenng Defendant is without information sufficient to respond to the averments of paragraph 66, strict proof being demanded at trial. 67. Denied. After reasonable investigation, answering Defendant is without information sufficient to respond to the averments of paragraph 67, strict proof being demanded at trial. 68. itself. 69. itself. 70. itself. 71. The averments of paragraph 68 relate to a document in writing which speaks for The averments of paragraph 69 relate to a document in writing which speaks for The averments of paragraph 70 relate to a document in writing which speaks for Denied. After reasonable investigation, answenng Defendant is without information sufficient to respond to the averments of paragraph 71, strict proof being demanded at trial. 72. Denied. 73. The averments of paragraph 73 are directed to other Defendants. 74. Denied. The averments of paragraph 74(a) through (b) represent conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. -6- WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiff's Complaint with prejudice. COUNT IV Breach of Express Warrantv of Merchantabilitv 75. The answers to paragraphs 1 through 27 above are incorporated herein by reference as if textually set forth at length. 76. The averments of paragraph 76 are directed to other Defendants and are documents in writing which speak for themselves. 77. The averments of paragraph 77 are directed to other Defendants and are documents in writing which speak for themselves. 78. The averments of paragraph 78 are directed to other Defendants and are documents in writing which speak for themselves. 79. Denied. 80. Denied. 81. Denied. 82. Admitted in part and denied in part. It is admitted that Plaintiff s hearing aids required service. It is denied that they were the result of any impropriety on the part of answering Defendant. 83. Denied. 84. Admitted. 85. The averments of paragraph 85 relate to documents in writing which speak for themselves. -7- 86. Denied. The extended warranties are docwnents in writing which speak for themselves. 87. Denied. The averments of paragraph 87 are directed to other Defendants. 88. Denied. The averments of paragraph 88 are directed to other Defendants. 89. Denied. The averments of paragraph 89 set forth conclusions oflaw to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiff's Complaint with prejudice. COUNT V Breach of Express Warrantv of Merchantabilitv 90. The answers to paragraphs 1 through 42 above are incorporated herein by reference as if textually set forth at length. 91. Admitted upon information and belief. 92. Denied. 93. Admitted upon information and belief. 94. Denied. 95. Admitted. It is admitted that Plaintiff's hearing aids required additional service which was coordinated through Gable. 96. Admitted upon information and belief. 97. Admitted. 98. Admitted. -8- 99. (a)-(e) Denied. The averments of paragraphs 99(a) through (e) set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 100. Denied. The averments of paragraphs 100 are directed to another Defendant. 101. Denied. The averments of paragraph 101 are d,mied as conclusions of law. By way of further response, said allegations are denied, strict proof being demanded at trial. 102. Denied. 103. Denied. The averments of paragraph 103 are denied as conclusions of law. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. COUNT VI Pennsvlvania Unfair Trade Practices and Consumer Protection Law 104. The answers to paragraphs 1 through 56 above are incorporated herein by reference as iftextuall y set forth at length. 105.-121. The averments of paragraph 105 through 121 are duplicates of the averments set forth in Plaintiffs Complaint in paragraphs 58 through 74. As such, Defendant reiterates its responses as set forth therein. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. II. NEW MATTER 122. Plaintiff may have abused or misused the prodm:t. 123. Plaintiff may have acted negligently in the care and use of the hearing aid. -9- 124. Plaintiff's difficulty in using the aforesaid hearing aid devices was in part and/or in whole caused by his excessive earwax condition which impaired and damaged the units. 125. Plaintiffs claims may be barred by the doctrine of assumption of the risk and/or the statute of limitations. 126. Plaintiffs' Complaint fails to state a claim upon which relief can be granted. 127. No act or omission on the part of answering Defendant was the proximate cause or contributing cause of the damages allegedly suffered by the Plaintiff. 128. Any liability of answering Defendant, such liability being expressly denied, is barred and/or limited by the intervening or superseding negligence or other tortuous conduct of parties for whose conduct Defendants are not responsible. 129. Plaintiff's claims are barred in whole or in part by the Plaintiff's spoliation ofthe evidence thus prejudicing answering Defendant's ability to defend their case. 130. If answering Defendant is deemed to be responsible for the product at issue, that product was not defective in design or in any other respect at the time for which answering Defendant is deemed responsible for the product. 131. Some or all of the claims of the Plaintiff against answering Defendant is barred in whole or in part by the doctrine of laches. 132. Plaintifffailed to mitigate his damages. 133. Plaintiffs claims are barred in whole or in part by the doctrine of accord and satisfaction. 134. Plaintiffs claims are barred in whole or in plllt by Plaintiff's use and enjoyment of the product. -10- WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiff s Complaint with prej udice. III. NEW MATTER PURSUANT TO PA.R.C.P. 2252(d) 135. The averments of paragraphs I through 134 above are incorporated herein by reference as if textually set forth at length. 136. Answering Defendant, Gable Associates Hearing Aid Services ("Gable") avers that if Plaintiff sustained any damages as is alleged in his Complaint, which is hereby specifically denied, then Defendant, Siemens Hearing Instruments, Inc., ("Siemens") is alone liable or liable over to it or jointly or severally liable for said damages, any liability of the answering Defendant Gable being hereby expressly denied. 137. Answering Defendant Gable hereby crossclaims against Defendant Siemens to protect its right of indemnity and contribution, and in the event that it is judicially determined that Defendant Gable is jointly or severally liable to Plaintiff, then Defendant Siemens is liable over to Defendant Gable the existence of any liability on the part of the answering Defendant being hereby expressly denied. WHEREFORE, Defendant Gable avers that it is not liable to Plaintiff in the within cause of action and requests your Honorable Court to dismiss the Complaint filed against it; AND IN THE ALTERNATIVE, avers that if Plaintiff is entitled to recover upon his Complaint, then Defendant Siemens is solely liable to Plaintiff; and further avers that if it should be found that -11- Defendant Gable is in any way liable to Plaintiff, then Siemens is jointly and/or severally liable with answering Defendant or liable over to answering Defendant. BUZGON DAVIS LAW BY; /L-- Scott L. Grenoble, E uire-Attorney J.D. #72808 525 South Eighth et-Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Fax; (717) 274-1752 E-Mail: sgrenoble@buzgondavis.com Attorneys for Defendant, Gable Associates Hearing Aid Services -12- VERIFICATION I, SCOIT L. GRENOBLE, do hereby verify that I am the attorney for Gable Associates Hearing Aid Services, in the within action. The facts set forth in the foregoing Answer, New Matter and New Matter Pursuant to PA.R.C.P. 2252(d) are true and correct to the best of my knowledge, information and belief, as conveyed to me by my client. My knowledge in this matter is based entirely on what has been passed to me by my client. I hereby further verify that I am signing this Verification on behalf of my client, pursuant to Rule I024(c) of the Pennsylvania Rules of Civil Procedure, because my client is unavailable to timely file this Verification within the time allowed for filing a pleading. I understand that false statements herein are madl: subject to the penalties of 18 Pa.C.S. S4904 relating to unsworn falsification to authorities. Date: September 1,2005 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY QUENTIN COOPER, Plaintiff NO. 05-3003 vs. CIVIL ACTION - LAW SIEMENS HEARING INSTRUMENTS, INC., and : GABLE ASSOCIATES HEARING AID SERVICES, JURY TRIAL DEMANDED Defendant AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) I. Janelle K. Worcester, an employee of the law firm of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, Gable Associates Hearing and Services, being duly sworn according to law, depose and say that I mailed on September 2, 2005, for filing in the Office of the Prothonotary of Cumberland County, the original ANSWER, NEW MATTER AND NEW MATIERPURSUANT TO PA.R.C.P. 2252 (d) OF GABLE ASSOCIATES HEARING AID SERVICES and that I mailed, by First Class mail, in a postpaid envelope, a true and correct copy to Nichole M. Walters, Esquire, The Elder Law Clinic, The Dickinson School of Law of the Pennsylvania State University, 150 South College Street, Carlisle, Pennsylvania 17013, Attorney for Plaintiff, and Siemens Hearing Instruments, Inc., c/o Corporation Service Company, 2704 Commerce Drive, Harrisburg, Pennsylvania 17110, Defendant. Sworn to and subscribed before me this 2nd day of September, A.D., 2005. Notarial Seal KeUy L. Effinger. Nalary Public Ci!yOf Lebanon. Lebanon Coonty My Cammission Expires Mar. 10. 2007 Member, Penns'lvania ASSOCiation Of NOleries " .~ C) "Tl .--< ..,. ~- --n {'tlp-~ :.n~:::\ I 0-" J " -r -:J (:? ."-h ~ --'-, j .. ~~~ 'p cl) :< Kristin M. Hynd, Esquire Pa. Id. No. 85725 DECHERT LLP 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA 19103 (215) 994-2643 kristin.hynd@dechert.com Attorney for Defendant Siemens Hearing Instruments, Inc. QUENTIN COOPER CUMBERLAND COUNTY COURT OF COMMON PLEAS PLAINTIFF v. CIVIL ACTION - LAW NO. 05-3003 SIEMENS HEARING INSTRUMENTS, INe. AND GABLE ASSOCIATES HEARING AID SERVICES JURY TRIAL DEMANDED DEFENDANTS ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned attorney on behalf of defendant Siemens Hearing Instruments, Inc. in the above-referenced case. Dated: September 16, 2005 'sti DE ERT LLP 40 0 Bell Atlantic Tower 1 17 Arch Street Philadelphia, PA 19103 (215) 994-4000 CERTIFICATE OF SERVICE I hereby certify that on this date I served the foregoing Entry of Appearance upon counsel listed below via U.S. first class mail: Dale A. Tice, Certified Legal Intern Mark W. Allshouse, Esquire Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013-2899 Scott L. Grenoble, Esquire Buzgon Davis Law Offices 525 South Eighth Street Lebanon, PA 17042 Dated: September 16, 2005 - - (") ,..., 0 = c ~ -0 -,,,.. :i!-n '>~:'" <I' -ot'.1:"1 rnrn ~ i1'-" h:(!, r- zr' :B'" ~~~- - :t'i ::< :.;. C1' C) , ~C_; :::;1 ~.(, ..." /---~"'; ;t~C: ::t:: .4c) be' t-jrn 'P"c t:? ::-4 Z i :< (.,) (.fl - ~ Kristin M. Hynd, Esquire Pa. Id. No. 85725 DECHERT LLP 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA 19103 (215) 994-2643 kristin.hynd@dechert.com Attorney for Defendant Siemens Hearing Instruments, Inc. QUENTIN COOPER CUMBERLAND COUNTY COURT OF COMMON PLEAS PLAINTIFF v. CIVIL ACTION - LAW NO. 05-3003 SIEMENS HEARING INSTRUMENTS, INC. AND GABLE ASSOCIATES HEARING AID SERVICES WRY TRIAL DEMANDED DEFENDANTS ANSWER AND NEW MATTER OF DEFENDANT SIEMENS HEARING INSTRUMENTS, INC. Defendant Siemens Hearing Instruments, Inc. ("Defendant"), by and through its undersigned counsel, hereby responds to Plaintiffs Complaint with the following Answer and New Matter: I. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 1. Accordingly, such allegations are denied. 2. Denied. Siemens Incorporated is not a defendant in this case. 3. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 3. Accordingly, such allegations are denied. 4. The allegations in paragraph 4 constitute conclusions oflaw to which no response is required. 5. -9. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 5 through 9. Accordingly, such allegations are denied. 10. Denied. Defendant denies plaintiffs description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. 11. -27. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 11 through 27. Accordingly, such allegations are denied. 28. Defendant incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 29.-31. Denied. Defendant denies plaintiffs description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. 32. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 32. Accordingly, such allegations are denied. 33. The allegations in paragraph 33 constitute conclusions oflaw to which no response is required. To the extent this paragraph can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 34.-39. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 34 through 39. Accordingly, such allegations are denied. 40.-42. The allegations in paragraph 40 through 42 constitute conclusions of law to which no response is required. 43. Defendant incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 44.-51. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 44 through 51. Accordingly, such allegations are denied. 52.-56. The allegations in paragraphs 52 through 56 constitute conclusions of law to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth ofthese allegations. Accordingly, such allegations are denied. 57. Defendant incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 58. The allegations in paragraph 58 constitute conclusions oflaw to which no response is required. 59. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 59. Accordingly, such allegations are denied. 60.-63. The allegations in paragraphs 60 through 63 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 64.-66. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 64 through 66. Accordingly, such allegations are denied. 67. The allegations in paragraph 67 constitute conclusions of law to which no response is required. To the extent this paragraph can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 68.-70. Denied. Defendant denies plaintiffs description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. 71. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 71. Accordingly, such allegations are denied. 72.-74. The allegations in paragraphs 72 through 74 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 75. Defendant incorporates herein all other paragraphs ofthis Answer and New Matter as though fully set forth. 76.-78. Denied. Defendant denies plaintiffs description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. 79. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 79. Accordingly, such allegations are denied. 80. The allegations in paragraph 80 constitute conclusions oflaw to which no response is required. To the extent this paragraph can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth ofthese allegations. Accordingly, such allegations are denied. 81.-86. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 81 through 86. Accordingly, such allegations are denied. 87.-89. The allegations in paragraph 87 through 89 constitute conclusions oflaw to which no response is required. 90. Defendant incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 91.-98. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 91 through 98. Accordingly, such allegations are denied. 99.-103. The allegations in paragraphs 99 through 103 constitute conclusions of law to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 104. Defendant incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 105. The allegations in paragraph 105 constitute conclusions oflaw to which no response is required. 106. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 106. Accordingly, such allegations are denied. 107.-110. The allegations in paragraphs 107 through 110 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 111.-113. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 111 through 113. Accordingly, such allegations are denied. 114. The allegations in paragraph 114 constitute conclusions oflaw to which no response is required. To the extent this paragraph can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 115.-117. Denied. Defendant denies plaintiff's description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. 118. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth ofthe allegations in paragraph 118. Accordingly, such allegations are denied. 119.-121. The allegations in paragraphs 119 through 121 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. WHEREFORE, Defendant respectfully requests that this Court enter judgment in its favor and against Plaintiff, dismissing Plaintiffs claims and awarding Defendants whatever additional legal and equitable relief the Court deems appropriate. NEW MATTER 1. Defendant incorporates by reference its responses to paragraphs 1 through 121 ofthe Plaintiffs Complaint as ifset forth in their entirety. 2. Defendant incorporates by reference the affirmative defenses and new matter of all other defendants currently named or named in the future as if set forth in their entirety. 3. Some or all ofthe averments of the Complaint fail to state a cause of action upon which relief can be granted. 4. Some or all of plaintiffs claims are barred by the applicable statutes of limitations and the doctrines of waiver, estoppel and laches. 5. Some or all of plaintiffs claims are barred by the doctrine of accord and satisfaction. 6. Some or all of plaintiffs claims are barred by his failure to mitigate damages. 7. At all times relevant hereto, Defendant acted reasonably, properly, with due care, and in accordance with all applicable laws and duties. 8. The hearing aid malfunctions, if any, plaintiff experienced are not covered by any warranty from Defendant. 9. The hearing aid malfunctions, if any, were due to unusual wear and tear or mistreatment of the hearing aid by plaintiff. 10. Defendant properly disclaimed any implied warranty of merchantability or implied warranty of fitness for a particular purpose associated with its hearing aid. 11. Nothing Defendant did or failed to do proximately caused any injury to the plaintiff. 12. To the extent, if at all, the plaintiff suffered the injuries alleged in the Complaint, which is denied, those injuries may have been caused in whole or in part by the conduct, acts, omissions or negligence of the plaintiff or others over whom Defendant had no control, no responsibility to control, and no duty to control. 13. To the extent, if at all, the plaintiff suffered the injuries alleged in the Complaint, which is denied, those injuries may have been caused in whole or in part by the intervening and superseding conduct of third parties for which Defendant is not liable. 14. Plaintiffs claims are barred because the plaintiff has suffered no harm, injury or damages. 15. Defendant reserves the right to amend the foregoing New Matter in order to include additional defenses, cross-claims, and/or counterclaims as may be discovered throughout the course of this litigation. Dated: September 16, 2005 Respectfully submitted, ,Es DEe ERT LLP 40 Bell Atlantic Tower 17 7 Arch Street Philadelphia, PA 19103 (215) 994-4000 Attorneys for Defendant Siemens Hearing Instruments, Inc. CERTIFICATE OF SERVICE I hereby certify that on this date I served the foregoing Answer and New Matter upon counsel listed below via U.S. first class mail: Dale A. Tice, Certified Legal Intern Mark W. Allshouse, Esquire Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013-2899 Scott L. Grenoble, Esquire Buzgon Davis Law Offices 525 South Eighth Street Lebanon, P A 17042 Dated: September 16, 2005 09/15/2005 18:48 FAX 7325828883 ~ 0021002 VERIFICATION I, Ricki Klein, am the National Customer Care Manager for Siemens Hearing Instruments, Inc. and am authorized to make this verification on its behalf. I hereby verify that the facts set forth in the foregoing Defendant's Answer and New Miltter to Plaintiff's Complaint are true and correct to the best of my knowledge, information and/or belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S.A. ~ 4904 relating to unsworn falsifications to authorities. Dated: September 15, 2005 ~ O;;.~ -cr.;J t1~f".:. ~~ ~~-~ (j;' "'~-~ _z,' C2.C) ~(..', .~C"" :S;>C ~./ :2 ~ 5?> ~ --0 - C1' -0 ::To <f! Q. ~:P ~~ :.By ~~q, :;5--<' :-c:6 of" "" "" ~ (~ if< IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED ANSWER TO NEW MATTER AND NEW MATTER PURSUANT TO P A.R.C.P. 2252 (d) OF GABLE ASSOCIATES HEARING AID SERVICES AND NOW, comes the Plaintiff, Quentin Cooper, by and through its attorneys, Nichole M. Walters and the Elder Law Clinic of the Penn State Dickinson School of Law, and in support of its Answer to New Matter of Gable Associates Hearing Aid Services avers as follows: ANSWER TO NEW MATTER 122. Denied. It is specifically denied that the Plaintiff may have abused or misused the product. By way of further response, strict proof thereof is demanded at the time of trial if deemed relevant. 123. Denied. It is specifically denied that the Plaintiff may have acted negligently in the care and use of the hearing aid. By way of further response, strict proof thereof is demanded at the time of trial if deemed relevant. 124. Denied. It is specifically denied that the Plaintiff's difficulty in using the aforesaid hearing aid was in any part due to an excessive earwax condition. By way of further response, strict proof thereof is demanded at the time of trial if deemed relevant. 125. Denied. The averments in paragraph 125 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 126. Denied. The averments in paragraph 126 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 127. Denied. The averments in paragraph 127 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 128. Denied. The averments in paragraph 128 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 129. Denied. The averments in paragraph 129 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 130. Denied. The averments in paragraph 130 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 2 131. Denied. The averments in paragraph 131 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 132. Denied. The averments in paragraph 132 of the Defendant's New MatteI constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 133. Denied. The averments in paragraph 133 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 134. Denied. The averments in paragraph 134 of the Defendant's New MatteI constitute conclusions of law to which no response is required. If a response is required, the averments are denied. ANSWER TO NEW MATTER PURSUANT TO PA.R.C.P. 2252 (d) 135. Paragraph 135 of the Defendant's New Matter Pursuant to PA.R.C.P. 2252 (d) contains no averments to which a response is necessary. To the extent that a response may be required, the Plaintiff incorporates paragraphs 122 to 134 of its Answer to New Matter by reference as if set forth herein at length. 136. Denied. The averments in paragraph 136 of the Defendant's New Matter Pursuant to P A.R.C.? 2252 (d) constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 3 137. Denied. Paragraph 137 of the Defendant's New Matter Pursuant to PA.R.C.P. 2252 (d) contains no averments to which a response is necessary. To the extent that a response may be required, the averments are denied. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against the Defendants in the amount demanded in its Complaint. Respectfully submitted, ,~~, Dale A. Tice Certified Legal Intern Dated: '1 I )-(.., / ).u U '5 .1\cJ.~R~' (jJaWt... Nichole M. Walters Supreme Court No. 84478 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 4 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff v. Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants NO. 05-3003 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on September ---.<lL, 2005, I served the foregoing Answer to New Matter of Gable Associates Hearing Aid Services, by placing true and correct copies of the same via First Class Mail, postage prepaid, addressed as follows: Gable Associates Hearing Aid Services c/o Scott L. Grenoble, Esquire Buzgon Davis Law Office 525 South Eighth Street P.O. Box 494000 Lebanon, PA 17042-0049 Dated: "II)..!. /J..i)U S; Siemens Hearing Instruments Inc. c/o Kristin M. Hynd, Esquire Law Offices of Dechert LLP 1717 Arch Street Bell Atlantic Tower Philadelphia, PA 19103 By: ~.....-_.._-~ ( .~. Dale A. Tice Certified Legal Intern Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013 (717) 240-5152 5 o ~~ -"'1.-< ;~}i: l -,- -~i --:: ......, = '= ~ V) r<1 '"D o .,., 5!.." rnp::::. ::IJCQ ...U\;:o ::'}Q ?~:j:J .,>( ) Oln .~ ::0 -< '" 0""1 -0 ~ ~ N -...J SHERIFF'S RETURN - REGULAR CASE NO: 2005-03003 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND COOPER QUENTIN VS SIEMENS HEARING INSRUMENTS INC JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County, pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GABLE ASSOCIATES HEARING AID SERVICES the DEFENDANT , at 1510:00 HOURS, on the 20th day of June , 2005 at 3461 MARKET ST SUITE 105 CAMP HILL, PA 17011 by handing to KATHY SHORT, OFFICE MANAGER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge So Answers: 6.00 11.10 .74 10.00 .00 27.84 ?~g~~ R. Thomas Kline 06/23/2005 DICKINSON SCHOOL OF LAW CLINIC Sworn and Subscribed to before By: me this q day of ~ qat)) -- A.D. ;l-',~~'hOt::k.:! ...,- - ~ ~. y Sheriff SHERIFF'S RETURN - OUT OF COUNTY . CASE NO: 2005-03003 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND COOPER QUENTIN VS SIEMENS HEARING INSRUMENTS INC 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: SIEMENS HEARING INSTRUMENTS INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE 23rd , 2005 , this office was in receipt of the On June attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin County So answers: 18.00 9.00 10.00 30.00 .00 67.00 06/23/2005 DICKINSON SCHOOL R. Thomas Kline Sheriff of Cumberland County OF LAW CLINIC Sworn and subscribed to before me this q day of f2;"d'v -.tp~ ;)?oeo--- A.D. 1',),., ?0>f'f:J. - prothon ary In The" Court of Common Pleas of Cumberland County, Pennsylvania Quent:in Cooper VS. Siemens Hear:ing Instruments Inc et al SERVE: same No. 05-3003 civil Now, June 14", 2005 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Dauph:in County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. r~~ Sheriff of Cumherland County, PA Affidavit of Service Now, , 20_, at 0' 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, PA Sworn and subscribed before me this _ day of ,20_ COSTS SERVICE J'vIILEAGE AFFIDA VIT $ $ @ffite of tlr~ ~4~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 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania COOPER QUENTIN vs County of Dauphin SIEMENS HEARING INSTRUMENTS INC Sheriff's Return No.1066-T - -2005 OTHER COUNTY NO. 05-3003 AND NOW:June 21, 2005 at 10: 50AM served the within COMPLAINT upon SIEMENS HEARING INSTRUMENTS INC by personally handing C/O CORP SERVICE CO to WENDY SMITH, CSA 1 true attested copy(ies) of the original COMPLAINT and making known to him/her the contents thereof at 2704 COMMERCE DR HBG, PA 17110-0000 Sworn and subscribed to So Answers, Jf~ 'h.<"~~un,Y. By before me this 21ST day of JUNE, 2005 Pa. ~A/ NOTARIAL SEAL MARY JANE SNYDER. Notary Public H ighspire, Dauphin County My Commission Expires Sept. 1, 2006 Deputy Sheriff Sheriff's Costs:$30.00 PD 06/15/2005 RCPT NO 207845 GASPICH IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plain tiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED ANSWER TO NEW MATTER OF SIEMENS HEARING INSTRUMENTS. INC. AND NOW, comes the Plaintiff, Quentin Cooper, by and through its attorneys, Nichole M. Walters and the Elder Law Clinic of the Penn State Dickinson School of Law, and in support of its Answer to New Matter of Siemens Hearing Instruments, Inc. avers as follows: ANSWER TO NEW MATTER I. Denied. Paragraph 1 ofthe Defendant's New Matter contains no averments to which a response is necessary. To the extent that a response may be required, the averments are denied. 2. Denied. Paragraph 2 of the Defendant's New Matter contains no averments to which a response is necessary. To the extent that a response may be required, the averments are denied. 3. Denied. The averments in paragraph 3 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 4. Denied. The averments in paragraph 4 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 5. Denied. The averments in paragraph 5 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 6. Denied. The averments in paragraph 6 of the Defendant's New Matter constitnte conclusions of law to which no response is required. If a response is required, the averments are denied. 7. Denied. The averments in paragraph 7 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 8. Denied. The averments in paragraph 8 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 9. Denied. It is specifically denied that the hearing aid malfunctions were due to unusual wear and tear or mistreatment of the hearing aid by the Plaintiff. By way of further response, strict proofthereof is demanded at the time of trial if deemed relevant. 10. Denied. The averments in paragraph 10 of the Defendant's New Matter constitute conclusions oflaw to which no response is required. If a response is required, the averments are denied. 2 11. Denied. The averments in paragraph 11 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 12. Denied. The averments in paragraph 12 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 13. Denied. The averments in paragraph 13 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 14. Denied. It is specifically denied that the Plaintiff's claims are barred because the Plaintiff has suffered no harm, irtiury or damages. Plaintiffs Complaint has alleged that Plaintiff suffered harm, injury and damages. 15. Denied. Paragraph 15 of the Defendant's New Matter contains no averments to which a response is necessary. To the extent that a response may be required, any amendment to Defendant Siemens Hearing Instruments, Inc. New Matter shall be done pursuant to the Pennsylvania Rules of Civil Procedure. 3 WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against the Defendants in the amount demanded in its Complaint. Respectfully submitted, ~--_.---., \.~ .j. Dale A. Tice Certified Legal Intern Nichole M. Walters Supreme Court No. 84478 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 Dated: \ d / () s / J. <Joe:;, , . 4 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff v. Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants NO. 05-3003 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on October ~, 2005, I served the foregoing Answer to New Matter of Siemens Hearing Instruments, Inc., by placing true and correct copies of the same via First Class Mail, postage prepaid, addressed as follows: Gable Associates Hearing Aid Services c/o Scott L. Grenoble, Esquire Buzgon Davis Law Office 525 South Eighth Street P.O. Box 494000 Lebanon, P A 17042-0049 Dated: \ () I () 5' ( dDO'S Siemens Hearing Instruments Inc. c/o Kristin M. Hynd, Esquire Law Offices of Dechert LLP 1717 Arch Street Bell Atlantic Tower Philadelphia, PA 19103 By: ~. -.- ~. ) . Dale A. Tice Certified Legal Intern Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013 (717) 240-5152 5 ~:? ...' ~' c~? e-'"' o C-) --~ ( ..~ -~~ ,-<: I (ji <;;j; .-\ ;,; :!~ .' r..::'... :,9)\~-j :,~) 2-.,1 " -T, --",'\ .~~? ~~ ,;"jJ :-<; ~t: - - ... ."C IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED MOTION FOR LEAVE OF COURT TO FILE AN AMENDED COMPLAINT PURSUANT TO PA.R.C.P. 1033 AND NOW, comes the Plaintiff, Quentin Cooper, by and through its attorneys, Nichole M. Walters and the Elder Law Clinic of the Penn State Dickinson School of Law, and in support of its Motion for Leave of Court to File an Amended Complaint Pursuant to Pa. R.C.P. 1033 avers as follows: 1. The Plaintiff commenced this action with the filing of its Complaint in the Cumberland County Court of Common Pleas on June 10,2005. 2. A copy of the Plaintiffs Complaint was served upon Gable and Associates Hearing Aid Services by the Deputy Sheriff of Cumberland County, Pennsylvania, at the Defendant's address of 3461 Market Street, Suite 105, Camp Hill, PA 17701 on June 20, 2005. 3. A copy of the Plaintiffs Complaint was served upon Siemens Hearing Instruments Inc. by certified mail pursuant to Pa.R.C.P. 404 at the Defendant's address of P.O. Box 1397, Piscataway, NJ 08855 on July 25, 2005. 4. Defendant Gable Associates Hearing Aid Devices requested and was granted by the Plaintiff an extension of time to file its Answer to Plaintiffs Complaint until August 29,2005. 5. Defendant Siemens Hearing Instruments Inc. requested and was granted by the Plaintiff an extension of time to file its Answer to Plaintiff s Complaint until September 16, 2005. 6. Defendant Gable Associates Hearing Aid Devices mailed for filing in the Cumberland County Court of Common Pleas its Answer, New Matter and New Matter pursuant to Pa.R.C.P. 2252 (d) on September 2,2005. 7. Plaintiff has noted that Defendant's Gable Associates Hearing Aid Devices Answer to Plaintiffs Complaint does not address paragraphs 13 through 21 of the Plaintiffs Complaint. 8. Upon inspection of the Plaintiffs original Complaint, as filed in the Cumberland County Court of Common Pleas, Plaintiff discovered that page "5" of the Complaint is missing. Page "5" contains paragraphs 13 through 21 of the Plaintiffs Complaint. 9. Paragraphs 13 through 21 of the Plaintiffs Complaint as it was intended to be filed neither state a new cause of action or add a new party to the action. 2 10. Defendants Gable and Associates Hearing Aid Services and Siemens Hearing Instruments Inc. will not be adversely prejudiced if the Plaintiff is granted leave to file an Amended Complaint to include the averments in paragraphs 13 through 21. II. Concurrence of counsel for Defendant Gable and Associates Hearing Aid Services for leave to file an Amended Complaint was sought and granted. Please see the signed consent of Counsel for Defendant Gable and Associates Hearing Aid Services attached as Exhibit "A." 12. Concurrence of counsel for Defendant Siemens Hearing Instruments Inc. for leave to file an Amended Complaint was sought and granted. Please see the signed consent of Counsel for Defendant Siemens Hearing Instruments Inc. attached as Exhibit "B." 13. Please see the proposed Amended Complaint attached as Exhibit "C." WHEREFORE, the Plaintiff respectfully requests that this Honorable Court grant the Plaintiffs Motion for Leave to File an Amended Complaint. Respectfully submitted, 2<-' ", ~--) Dated: ',() / ~ (,/ )..tJ 0 .s //'1 t-Juri.e..-iVl I A.JrJ...Rb A.-^r- Nichole M. Walters -. Supreme Court No. 84478 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 Dale A. Tice Certified Legal Intern 3 - E"Xll1UI1' .. J>:' 6 - IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED CONSENT I, Scott Grenoble, Esquire, attorney for Defendant Gable Associates Hearing Aid Services, hereby consent to the Plaintiff s filing of an Amended Complaint to include page "5" of the Complaint, as it was intended to be filed, containing paragraphs 13 through 21 of the Complaint. n Scott Greno Ie, Esquire Attorney r Defendant Gable sociates Hearing Aid Services EXHIBIT "B" IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED CONSENT I, Kristin Hynd, Esquire, attorney for Defendant Siemens Hearing Instruments Inc., hereby consent to the Plaintiffs filing of an Amended Complaint to include page "5" of the Complaint, as it was intended to be filed, containing paragraphs 13 through 21 ofthe Complaint. c____ RE.CEiVED OCT 1 3 26\15 EXHIBIT "C" IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED 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 of 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 NOTICIA USTED HA SIDO DEMANDADA EN CORTE. Si usted quiere defenderse de e stas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificaci6n. U sted debe presentar una apariencia escrita 0 en persona 0 par abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previa aviso o notificaci6n y por cualquier queja 0 alivio que es pedido en la petici6n de demanda. U sted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE P AGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELFFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRlT A ABAJO PARA A VERlGUAR DONDE SE PUEDE CONSEGUlR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Nichole M. Walters Supreme Court No. 84478 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 2 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. Defendant JURY TRIAL DEMANDED Gable Associates Hearing Aid Services Amended Complaint Plaintiff Quentin Cooper, by and through his attorneys, Nichole M. Walters, Esq. and The Elder Law Clinic of The Pennsylvania State University Dickinson School Law state the following in support of this Complaint: Statement of Facts 1. Plaintiff is Quentin Cooper, a sui juris adult, residing at 561 Cambria A venue, Harrisburg, Dauphin County, Pennsylvania, 17111. 2. Defendant Siemens Incorporated is a Delaware Corporation with a service address of c/o Corporation Service Company, as Registered Agent for Service, 2704 Commerce Drive, Harrisburg, Pennsylvania 17110. 3. Defendant Gable and Associates, is a Pennsylvania Corporation having a business address of 3461 Market Street, Suite 105, Camp Hill, Pennsylvania 17011. 4. Jurisdiction and venue are proper in that the actions referred to throughout this pleading occurred in Cumberland County, Pennsylvania, and the sale of the item to Plaintiff occurred in Cumberland County, Pennsylvania. 3 5. In 1951, Plaintiff sustained an occupational injury as a Pennsylvania State Policeman, resulting in permanent, bilateral hearing impairment. 6. In the fall of 2000, Gable Associates Hearing and Services ("Gable Associates"), a local hearing aid provider, performed hearing tests on Plaintiff. 7. Gable Associates recommended to the Plaintiff the Siemens PRISMA Lifesound ITE hearing aid system ("Hearing Aid"), model number 005025398, which works as a dual system requiring both the left and right ear piece to work simultaneously to be effective. 8. On, or about, October 19,2000, following the recommendation of Gable Associates, the Plaintiff purchased the Hearing Aid for $5500. 9. The purchase came with a two-year warranty. A true and correct copy of the purchase contract is attached hereto as Exhibit "A" and incorporated by reference. 10. The general description ofthe warranty is located in Siemens' General Information brochure. A true and correct copy of the description is attached and labeled as Exhibit "B", hereto and incorporated by reference. 11. On, or about, February 1, 2001 the left Hearing Aid began having episodes where it would fail to turn on. If the Hearing Aid did turn on, it would whistle for at least the first hour of use. 12. The Plaintiff took the left Hearing Aid to Gable Associates for repair and, in-turn, Gable Associates sent it to Siemens for repair service. 13. On February 27,2002, the Plaintiff picked up the left Hearing Aid from Gable Associates and was advised by Gable Associates that it was in the Plaintiff s best interests to purchase a Waxman 2000, a vacuum device that helps to remove 4 moisture from hearing aids and ear molds in order for a hearing aid system to function properly. 14. On February 27, 2002, the Plaintiff purchased a Waxman 2000 from Gable Associates for $25.00. 15. During the drive home from Gable Associates on February 27, 2002, the left Hearing Aid again failed to function. 16. In the fall of 2002, the original warranty for the Hearing Aids expired. 17. The Plaintiff was given an additional six month warranty after the original warranty expired because at the time of warranty's expiration, the left Hearing Aid was being serviced. The repair to the left Hearing Aid was not successful as it continued to intermittently cease working. 18. On May 23,2003, the left Hearing Aid failed to function properly and the Plaintiff again returned to Gable Associates for repair service. 19. On May 23, 2003, the Plaintiff paid Gable Associates $290 for repair of the left Hearing Aid and an extended twelve-month warranty for the left Hearing Aid. This warranty expired June 6, 2004. A true and correct copy of the receipt for the warranty is attached hereto as "Exhibit C" and is hereby incorporated by reference. 20. In July, 2003, the Plaintiffs right Hearing Aid stopped working when its microphone failed to function; subsequently, the Plaintiff took the Hearing Aid to Gable Associates for repair. 21. On July 18, 2003, the Plaintiff paid $290 for repairs to the right Hearing Aid and an extended twelve-month warranty on the right Hearing Aid. This warranty 5 expired July 31, 2004. A true and correct copy of the receipt for the warranty is attached hereto as "Exhibit D" and is hereby incorporated by reference. 22. On July 21, 2003, the Plaintiff called the Siemens service center but was unable to hear the representative because he did not have functional hearing aids. Plaintiff s spouse spoke with the customer representative, "Meghan." 23. Despite being provided with the serial numbers of the Hearing Aids, the customer service representative made no apparent attempt to find information regarding the Plaintiffs purchase. 24. When the Plaintiffs spouse asked about a possible refund for the Hearing Aids, the customer service representative told the Plaintiffs spouse to "see a therapist." 25. On November 3, 2003, the casing door broke off of the left Hearing Aid. 26. The left Hearing Aid with a broken casing door required service repair and was refitted with reconditioned parts. 27. To date, the Siemens Hearing Aid system that Plaintiff bought from Gable and Associates has not worked in a manner it was purported to and has required numerous repairs. Further, despite numerous repairs made while under warranty, the Hearing Aid system continues to fail to operate properly and is nonfunctional for the Plaintiff. COUNT I: Breach of Express Warranty of Merchantability 28. Paragraphs I through 27 are incorporated by reference. 6 29. Siemens states in their General Information brochure that Siemens products are internationally known for their "superior performance and durability." See Exhibit B. 30. The Siemens' brochure states that they are the world's largest manufacturer of hearing aids. See Exhibit B. 31. The Siemens' brochure expressly states that their merchandise provides superior performance and that the model purchased by Plaintiff met strict quality assurance requirements. See Exhibit B. 32. Plaintiffs decision to purchase the $5500 Hearing Aids was based upon Gable Associates recommendation that the model was the "top-of-the-line" and on Siemens' reputation for quality instruments. 33. Siemens' dual-system Hearing Aid failed to meet its ordinary purpose of enabling Plaintiff to hear better because of the system's frequent failure to work and need of repair. 34. The Hearing Aids purchased by Plaintiff required frequent and repeated repair, and during some repairs, were rebuilt with both reconditioned and new parts. 35. Despite frequent service and repair, Plaintiffs Hearing Aids would intermittently stop working, would whistle for lengthy periods of time, and failed to work at all when Plaintiff was using a telephone. 36. Plaintiff s Hearing Aids have never performed as promised and he has never been able to use them in a consistent and reliable manner in order to maximize his hearing ability. 7 37. Because of continued problems with the Hearing Aid system, Plaintiff purchased additional extended warranties for each hearing aid. 38. The extended warranty for the left Hearing Aid was purchased on May 5, 2003 and the extended warranty for the right Hearing Aid was purchased on July 18, 2003. See Exhibit C and D, respectively. 39. Plaintiff was told by Gable Associates that the extended warranties purchased on May 5, 2003 (for the left Hearing Aid) and on July 18,2003 (for the right Hearing Aid) would fall under the same provisions as that of the original warranty. 40. Siemens breached its express warranty of merchantability by repeatedly failing to repair or replace Plaintiff s faulty Hearing Aids to meet the "performance specifications ofthe model." See Exhibit B. 41. Siemens breached its express warranty of merchantability by failing to provide a quality and reliable dual-system hearing aid that provided a superior performance. 42. Gable Associates breached its express warranty of merchantability by selling to Plaintiff what they described as a "top-of-the-line" hearing aid system that would improve his hearing. WHEREFORE, Plaintiff Quentin Cooper requests that this Honorable Court enter judgment against Siemens Hearing Instruments, Inc. in an amount in excess of $6080 ($5000 for original hearing aids, $500 for original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy deemed just and appropriate. 8 COUNT II: Breach oflmplied Warranty of Merchantability 43. Paragraphs 1 through 42 are incorporated by reference. 44. In October 2000, the Plaintiff bought from Gable Associates the Siemens dual- system Hearing Aids for the ordinary purpose of improving his ability to hear. 45. The Hearing Aids malfunctioned repeatedly during and beyond the first warranty, which expired in 2002. 46. Plaintiff was granted an additional six month warranty at no charge once the original warranty expired because the Hearing Aids continued to malfunction and frequently required servicing. 47. The Hearing Aids continued to malfunction and failed to work after the six month warranty expired. 48. Plaintiffs left Hearing Aid required further repair in May 2003. On May 23, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty. See Exhibit C. 49. The twelve month warranty purchased for the left Hearing Aid on May 23, 2003 expired on June 6, 2004. 50. Plaintiffs right Hearing Aid required further repair in July 2003. On Julyl8, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty, the receipt of which is labeled as Exhibit D. 51. The twelve month warranty for the right Hearing Aid purchased on July 18, 2003 expired on July 31, 2004. 9 52. The Siemens Hearing Aid system sold to Plaintiff by Gable Associates tailed to meet the ordinary purpose for which such goods are used; namely, to minimize hearing impairment through a reliable and workable instrument. a. At least one of the Hearing Aids frequently stops working while resting in the ear and because the hearing aids are a dual-system, when one piece stops working, the other cannot function; b. The Siemens Hearing Aids Plaintiff purchased have worked erratically, if at all, and have required extensive servicing and repair; c. The Hearing Aids, even after multiple repairs, emit a high-pitched noise when used while talking on the telephone; d. Because of this high-pitched noise, Plaintiff has never been able to use the Hearing Aids while on the telephone; e. Due to the extensive number of repairs and service time required to attempt to make the Hearing Aids operational, Plaintiff was unable to have any use of the hearing system for successive weeks at a time. 53. Plaintiff relied on the promissory language of Siemens' General Information brochure in his decision to purchase what was purported to be exceptional quality hearing aids. 54. Further, in his decision to purchase the Siemens' dual-system Hearing Aids, Plaintiff relied on the sales statements by Gable Associates that the Siemens' brand was a "top-of-the-line" model. 55. The Hearing Aids have necessitated repair on at least twelve separate occasions, and have not met the standards described in the General Information brochure. 10 56. Defendants have breached the implied warranty of merchantability of the Hearing Aids sold to Plaintiff because they have malfunctioned since shortly after purchase and have failed to assist the Plaintiff in the manner to which they were intended, namely, to help the Plaintiff hear better. WHEREFORE, Plaintiff Quentin Cooper requests that this honorable court enter judgment against Siemens Hearing Instruments, Inc. in an amount in excess of $6080 ($5000 for original hearing aids, $500 for the original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy deemed just and appropriate. COUNT III: PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 57. Paragraphs 1 through 56 are incorporated by reference. 58. At aU times relevant hereto, Defendants were engaged in trade or commerce as defined in the Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S. S 201-3. 59. The Plaintiff bought from Gable Associates the dual-system Hearing Aids manufactured by Siemens for the particular purpose of improving his specific type of hearing impairment. 60. The Plaintiffs purchase of the Hearing Aids is a consumer transaction. 61. The Defendant's actions constitute unfair trade practices as defined by 73 Pa.C.S. S 201-2(4) and 73 Pa.C.S. S 201-3 in that the Defendants: a. represented that the hearing aids were of a particular standard, quality, or grade, when it was of another; 11 b. made repairs, improvements or replacements to the property of the Plaintiffs Hearing Aids of a nature or quality inferior to the standard specified in the extended warranty. 62. Defendant's actions are also unfair or deceptive acts or practices as defined by regulations promulgated under 73 P.S. S 201-3.1 in that they knew or should have known that repair and service done on the Plaintiff's Hearing Aides was of a nature or quality inferior to the standard specified in the brochure, yet failed to disclose this defect to the Plaintiff. 63. The Plaintiff relied upon Gable Associates to sell him a Hearing Aid system that would reliably turn on, be free from high-pitched noise, and provide, at a minimum, some measure of improvement to his hearing impairment. 64. The Plaintiffs Hearing Aid system has failed to work reliably, frequently emits a high-pitched noise, and has not served as reliable means of enhancing the Plaintiff s ability to hear. 65. The Plaintiff s hearing aid system has required servicing on at least twelve separate occasions. 66. During each separate service repair, the Plaintiff was without the use of any hearing aid assistance because the dual-system he purchased requires each hearing aid to function simultaneously. 67. Plaintiff complied with the Siemens warranty restriction and had the hearing aids serviced only by authorized Siemens service centers, namely Gable Associates. 12 68. Siemens General Information brochure which accompanied the Hearing Aids, attested to Siemens commitment to 85 years of manufacturing and expertise in providing "superior performance" hearing aid products. See Exhibit B. 69. Siemens General Information brochure also notes that each hearing instrument is recognized for "excellent electroacoustic characteristics" and each must meet "strict quality assurance requirements" before leaving Siemens' premises. See Exhibit B. 70. Siemens General Information brochure also stated that, when hearing aids were to be serviced for repair, all covered parts were to be repaired or replaced with new or reconditioned components to meet the specifications of the model being serviced. See Exhibit B. 71. Plaintiffs Hearing Aids required repeated service repairs, and on occasion, had reconditioned parts used to substitute broken ones. 72. Despite repairs and replacement of parts, the quality of the Hearing Aids continued to be inferior to, and below the standard of, that promised in the brochure. 73. Siemens' failure to adequately repair the Hearing Aids necessitated Plaintiff s purchase of an extended warranty for each hearing piece. 74. The Plaintiff has been subject to multiple damages secondary to the failure of the nonfunctional Hearing Aids, to wit: a. The Plaintiff has paid, at a minimum, $6800 for nonfunctional equipment that has not enabled him to hear better to any degree. 13 b. Plaintiff has suffered loss of enjoyment due to the hearing aids not working and better enabling him to hear: 1. The Plaintiff must use the closed captioning system when watching television because of his inability to hear without assistance. 2. The Plaintiff is unable to have proper telephone conversations because he cannot hear through the receiver. 3. The Plaintiff made numerous inconvenient and time-consuming trips to Gable Associates to have the hearing aids serviced. WHEREFORE, Plaintiff Quentin Cooper respectfully requests that this Honorable Court enter judgment against Defendant Siemens Hearing Instruments, Inc. in an amount in excess of $6080, plus treble damages and attorney fees as permitted by 73 Pa. C.S.A. S 201-9.2, costs of suit, and any other remedy deemed just and appropriate. COUNT IV: Breach of Express Warranty of Merchantability 75. Paragraphs 1 through 27 are incorporated by reference. 76. Siemens states in their General Information brochure that Siemens products are internationally known for their "superior performance and durability." (Exhibit B) 77. The Siemens' brochure states that they are the world's largest manufacturer of hearing aids. See Exhibit B. 14 78. The Siemens' brochure expressly states that their merchandise provides superior performance and that the model purchased by Plaintiff met strict quality assurance requirements. See Exhibit B. 79. Plaintiffs decision to purchase the $5500 Hearing Aids was based upon Gable Associates recommendation that the model was the "top-of-the-line" and on Siemens' reputation for quality instruments. 80. Siemens' dual-system Hearing Aid failed to meet its ordinary purpose of enabling Plaintiffto hear better because of the system's frequent failure to work and need of repair. 81. The Hearing Aids purchased by Plaintiff required frequent and repeated repair, and during some repairs, were rebuilt with both reconditioned and new parts. 82. Despite frequent service and repair, Plaintiff s Hearing Aids would intermittently stop working, would whistle for lengthy periods of time, and failed to work at all when Plaintiff was using a telephone. 83. Plaintiffs Hearing Aids have never performed as promised and he has never been able to use them in a consistent and reliable manner in order to maximize his hearing ability. 84. Because of continued problems with the Hearing Aid system, Plaintiff purchased additional extended warranties for each hearing aid. 85. The extended warranty for the left Hearing Aid was purchased on May 5,2003 and the extended warranty for the right Hearing Aid was purchased on July 18, 2003. See Exhibit C and D, respectively. 15 86. Plaintiff was told by Gable Associates that the extended warranties purchased on May 5, 2003 (for the left Hearing Aid) and on July 18,2003 (for the right Hearing Aid) would fall under the same provisions as that ofthe original warranty. 87. Siemens breached its express warranty of merchantability by repeatedly failing to repair or replace Plaintiff s faulty Hearing Aids to meet the "performance specifications of the model." See Exhibit B. 88. Siemens breached its express warranty of merchantability by failing to provide a quality and reliable dual-system hearing aid that provided a superior performance. 89. Gable Associates breached its express warranty of merchantability by selling to Plaintiff what they described as a "top-of-the-line" hearing aid system that would improve his hearing. WHEREFORE, Plaintiff Quentin Cooper requests that this Honorable Court enter judgment against Gable Associates in an amount in excess of $6080 ($5000 for original hearing aids, $500 for original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy deemed just and appropriate. COUNT V: Breach ofImplied Warranty of Merchantability 90. Paragraphs 1 through 42 are incorporated by reference. 91. In October 2000, the Plaintiff bought from Gable Associates the Siemens dual- system Hearing Aids for the ordinary purpose of improving his ability to hear. 92. The Hearing Aids malfunctioned repeatedly during and beyond the first warranty, which expired in 2002. 16 93. Plaintiff was granted an additional six month warranty at no charge once the original warranty expired because the Hearing Aids continued to malfunction and frequently required servicing. 94. The Hearing Aids continued to malfunction and failed to work after the six month warranty expired. 95. Plaintiffs left Hearing Aid required further repair in May 2003. On May 23, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty. See Exhibit C. 96. The twelve month warranty purchased for the left Hearing Aid on May 23, 2003 expired on June 6, 2004. 97. Plaintiffs right Hearing Aid required further repair in July 2003. On Julyl8, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty, the receipt of which is labeled as Exhibit D. 98. The twelve month warranty for the right Hearing Aid purchased on July 18, 2003 expired on July 31, 2004. 99. The Siemens Hearing Aid system sold to Plaintiff by Gable Associates failed to meet the ordinary purpose for which such goods are used, namely, to minimize hearing impairment through a reliable and workable instrument; To wit: a. At least one ofthe Hearing Aids frequently stops working while resting in the ear and because the hearing aids are a dual-system, when one piece stops working, the other cannot function; b. The Siemens Hearing Aids Plaintiff purchased have worked erratically, if at all, and have required extensive servicing and repair; 17 c. The Hearing Aids, even after multiple repairs, emit a high-pitched noise when used while talking on the telephone; d. Because of this high-pitched noise, Plaintiff has never been able to use the Hearing Aids while on the telephone; e. Due to the extensive number of repairs and service time required to attempt to make the Hearing Aids operational, Plaintiff was unable to have any use of the hearing system for successive weeks at a time. 100. Plaintiffrelied on the promissory language of Siemens' General Information brochure in his decision to purchase what was purported to be exceptional quality hearing aids. 101. Further, in his decision to purchase the Siemens' dual-system Hearing Aids, Plaintiff relied on the sales statements by Gable Associates that the Siemens' brand was a "top-of-the-Iine" model. I 02. The Hearing Aids have necessitated repair on at least twelve separate occasions, and have not met the standards described in the General Information brochure. 1 03. Defendants have breached the implied warranty of merchantability of the Hearing Aids sold to Plaintiff because they have malfunctioned since shortly after purchase and have failed to assist the Plaintiff in the manner to which they were intended, namely, to help the Plaintiff hear better. WHEREFORE, Plaintiff Quentin Cooper requests that this honorable court enter judgment against Gable Associates, in an amount in excess of $6080 ($5000 for original hearing aids, $500 for the original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy deemed just and appropriate. 18 . COUNT VI: PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 104. Paragraphs 1 through 56 are incorporated by reference. 105. At all times relevant hereto, Defendants were engaged in trade or commerce as defined in the Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S. ~ 201-3. 106. The Plaintiff bought from Gable Associates the dual-system Hearing Aids manufactured by Siemens for the particular purpose of improving his specific type of hearing impairment. 107. The Plaintiffs purchase of the Hearing Aids is a consumer transaction. 108. The Defendants actions constitute unfair trade practices as defined by 73 Pa.C.S. ~ 201-2(4) and 73 Pa.C.S. ~ 201-3 in that the Defendants: a. represented that the hearing aids were of a particular standard, quality, or grade, when it was of another; b. made repairs, improvements or replacements to the property of the Plaintiffs Hearing Aids of a nature or quality inferior to the standard specified in the extended warranty. 109. Defendants actions are also unfair or deceptive acts or practices as defined by regulations promulgated under 73 P.S. ~ 201-3.1 in that they knew or should have known that repair and service done on the Plaintiff's Hearing Aides was of a nature or quality inferior to the standard specified in the brochure, yet failed to disclose this defect to the Plaintiff. 19 . 110. The Plaintiff relied upon Gable Associates to sell him a Hearing Aid system that would reliably turn on, be free from high-pitched noise, and provide, at a minimum, some measure of improvement to his hearing impairment. 111. The Plaintiffs Hearing Aid system has failed to work reliably, frequently emits a high-pitched noise, and has not served as reliable means of enhancing the Plaintiff s ability to hear. 112. The Plaintiffs hearing aid system has required servicing on at least twelve separate occasions. 113. During each separate service repair, the Plaintiff was without the use of any hearing aid assistance because the dual-system he purchased requires each hearing aid to function simultaneously. 114. Plaintiff complied with the Siemens warranty restriction and had the hearing aids serviced only by authorized Siemens service centers, namely Gable Associates. 115. Siemens General Information brochure which accompanied the Hearing Aids, attested to Siemens commitment to 85 years of manufacturing and expertise in providing "superior performance" hearing aid products. See Exhibit B. 116. Siemens General Information brochure also notes that each hearing instrument is recognized for "excellent electroacoustic characteristics" and each must meet "strict quality assurance requirements" before leaving Siemens' premises. See Exhibit B. 117. Siemens General Information brochure also stated that, when hearing aids were to be serviced for repair, all covered parts were to be repaired or replaced with 20 . . new or reconditioned components to meet the specifications of the model being serviced. See Exhibit B. . 118. Plaintiffs Hearing Aids required repeated service repairs, and on occasion, had reconditioned parts used to substitute broken ones. 119. Despite repairs and replacement of parts, the quality of the Hearing Aids continued to be inferior to, and below the standard of, that promised in the brochure. 120. Siemens' failure to adequately repair the Hearing Aids necessitated Plaintiffs purchase of an extended warranty for each hearing piece. 121. The Plaintiff has been subject to multiple damages secondary to the failure of the nonfunctional Hearing Aids, to wit: a. The Plaintiff has paid, at a minimum, $6800 for nonfunctional equipment that has not enabled him to hear better to any degree; b. Plaintiff has suffered loss of enjoyment due to the hearing aids not working and better enabling him to hear: 1) The Plaintiff must use the closed captioning system when watching television because of his inability to hear without assistance; 2) The Plaintiff is unable to have proper telephone conversations because he cannot hear through the receiver; 3) The Plaintiff made numerous inconvenient and time-consuming trips to Gable Associates to have the hearing aids serviced. WHEREFORE, Plaintiff Quentin Cooper respectfully requests that this Honorable Court enter judgment against Defendant Gable Associates in an amount in excess of 21 . ., $6080, plus treble damages and attorney fees as permitted by 73 Pa. C.S.A. 9201-9.2, costs of suit, any other remedy deemed just and appropriate Respectfully Submitted, Dated: Dale A. Tice Certified Legal Intern Nichole M. Walters Supreme Court Number 84478 The Elder Law Clinic The Dickinson School of Law of The Pennsylvania State University 150 South College Street Carlisle, P A 17013 (717) 240-5216 22 Quentin Cooper Plaintiff NO. 05-3003 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on October ~, 2005, I served the foregoing Motion for Leave to File an Amended Complaint, by placing true and correct copies of the same via First Class Mail, postage prepaid, addressed as follows: Gable Associates Hearing Aid Services c/o Scott L. Grenoble, Esquire Buzgon Davis Law Office 525 South Eighth Street P.O. Box 494000 Lebanon, P A 17042-0049 Siemens Hearing Instruments Inc. c/o Krisin Hynd, Esquire Deckert Law Office LLP 1717 Arch Street Bell Atlantic Tower Philadelphia, P A 19103 ~-/.... By: ~';, ~ - Dale A. Tice Certified Legal Intern Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013 (717) 240-5152 Dated: \~ / J.. 4 / J-Jd , \ "~I \ RECEIVEb OCT 2 8 2005 BY: IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff v. Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants NO. 05-300~ CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, upon consideration of the Plaintiffs Motion for Leave of Court to File an Amended Complaint, the Plaintiffs Motion is GRANTED. Notice of this ORDER is hereby given to the Defendants in this matter, by and through their Counsel, at their addresses as follows: eY /Gable Associates Hearing Aid Services c/o Scott L. Grenoble, Esquire Buzgon Davis Law Office 525 South Eighth Street P.O. Box 494000 Lebanon, P A 17042-0049 )Jou' 3) 2&05" ~}, ~ens Hearing Instruments Inc. c/o Kristin M. Hynd, Esquire Law Offices of Dechert LLP 1717 Arch Street Bell Atlantic Tower Philadelphia, P A 19103 BY THE COURT: .A~ J. Vi~',!V/;"Ll,Sj',:>,::'.ld ALl',lnC:<" ,.-.:, i'~'~;:r:nJ GS :L l~\1 11- AON SOUl AbV10NOH10tJd 3Hl:lO 381:l~0-Cl31!:1 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY QUENTIN COOPER, Plaintiff NO. 05-3003 vs. CIVIL ACTION - LAW SIEMENS HEARING INSTRUMENTS, INC., and : GABLE ASSOCIATES HEARING AID SERVICES, JURY TRIAL DEMANDED Defendant AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) I, Janelle K. Worcester, an employee of the law firm of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, Gable Associates Hearing and Services, being duly sworn according to law, depose and say that on December 6, 2005 I mailed he original ANSWERS TO REQUEST FOR PRODUCTION OF DOCUMENTS by First Class mail, in a postpaid envelope, to Nichole M. Walters, Esquire and Dale A. Tice, The Elder Law Clinic, The Dickinson School of Law of the Pennsylvania State University, 150 South College Street, Carlisle, Pennsylvania 17013, Attorney for Plaintiff, and that I mailed a true and correct copy to Kristin M. Hynd, Esquire, Law Offices of Dechert LLP, 1717 Arch Street, Bell Atlantic Tower, Philadelphia, Pennsylvania 19103, Attomey For Defendant Siemens Hearing Instruments, Inc. 1__-- Sworn to and subscribed before me this 6th day of December, A.D., 2005. ~ .I'#)J i !" . -, l.' \/ ')]{J/tl 1h;'. ucmG otary PU~~I COMMONWEALTH OF PENNSYLVANIA Notarial Seal Amanda Lee Robinson. Notary Public City of Labanon, Lebanon County My Commission Expires Jan. 3, 2009 Member, PennSylvania AssociaUon of Notaries ~\(~' ft: JANE:~L'Ei.' b~~CEiTER ,- IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY QUENTIN COOPER, Plaintiff NO. 05-3003 Vs. CIVIL ACTION - LAW SIEMENS HEARING INSTRUMENTS, INe., and GABLE ASSOCIATES HEARING AID SERVICES, JURY TRIAL DEMANDED Defendants NOTICE TO PLEAD To Plaintiff: Quentin Cooper You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. ANSWER, NEW MATTER AND NEW MATTER PURSUANT TO PA.R.C.P. 2252(d) OF GABLE ASSOCIATES HEARING AID SERVICES AND NOW, comes the Defendant, Gable Associates Hearing Aid Services, by its attorneys, Buzgon Davis Law Offices, and files this Answer and New Matter, respectfully averring as follows I. ANSWER I. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted. 4. Denied. The averments of paragraph 4 set forth conclusions of law to which no response is required. 5. Admitted upon information and belief. 6. Admitted. 7. Denied. 8. Admitted in part and denied in part. It is denied that Gable Associates made that specific recommendation. However, it is admitted that Plaintiff purchased a hearing aid from Gable Associates. 9. Denied. The claimed warranty is a document in writing and speaks for itself. 10. Denied. The claimed warranty is a document in writing and speaks for itself. 11. Admitted in part and denied in part. It is admitted that Plaintiff experienced some difficulties with the hearing aids. 12. Admitted. 13. Admitted in part and denied in part. It is admitted that Plaintiff picked up the left hearing aid on or about February 27, 2002. It is denied that Plaintiff was advised that it was in his "best interests" to purchase any particular device. 14. Admitted upon information and belief. 15. Denied. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 15, strict proof being demanded at trial. 16. Denied. The warranty is a document in writing and speaks for itself. The expiration of the warranty, if any, is subject to said warranty terms and conditions. 17. Admitted in part and denied in part. It is admitted that an additional warranty was extended. The remaining averments are denied, strict proof being demanded at trial. 18. Admitted in part and denied in part. It is admitted that Plaintiff returned to Gable Associates for additional service. It is denied that the hearing aid failed to function properly. 19. Denied. The documents which are referenced in paragraph 19 are documents in writing and speak for themselves. - 2 - 20. Admitted in part and denied in part. It is admitted that Plaintiff returned the hearing aid to Gable Associates for repair. The specific cause for the failure is denied, strict proof being demanded at trial 21. Admitted in part and denied in part. The documents which are referenced in paragraph 21 are documents in writing which speak for themselves. 22. Denied. After reasonable investigation, Defendant IS without sufficient information to respond to the averments of paragraph 22, strict proof being demanded at trial. 23. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 23, strict proof being demanded at trial. 24. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 24, strict proof being demanded at trial. 25. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 25, strict proof being demanded at trial. 26. Admitted upon information and belief. 27. Denied. COUNT I Breach of Express Warranty of Merchantability 28. The answers to paragraphs 1 through 27 above are incorporated herein by reference as if textually set forth at length. 29. The statements are set forth in documents in writing and speak for themselves. 30. The statements are set forth in documents in writing and speak for themselves. 3\. The statements are set forth in documents in writing and speak for themselves. - 3 - 32. Denied. After reasonable investigation, answermg Defendant is without information sufficient to respond to the averments of paragraph 32, strict proof being demanded at trial. 33. Denied. After reasonable investigation, answering Defendant is without information sufficient to respond to the averments of paragraph 33, strict proof being demanded at trial. 34. Denied. After reasonable investigation, answering Defendant is without information sufficient to respond to the averments of paragraph 34, strict proof being demanded at trial. 35. Admitted in part and denied in part. It is admitted that Plaintiff experienced difficulties with his hearing aid. However, upon information and belief, the difficulties Plaintiff experienced are the direct result of his own physical condition, i.e,. his generation of ear wax which interfered with the operation of the units. 36. Denied. 37. Admitted. 38. Admitted upon information and belief. 39. Denied. 40. Denied. The averments of paragraph 40 are directed to other Defendants. 41. Denied. The averments of paragraph 41 are directed to other Defendants. 42. Denied. The averments of paragraph 42 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. -4 - WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. COUNT II Breach of Imolied Warrantv of Merchantability 43. The answers to paragraphs 1 through 43 above are incorporated herein by reference as if textually set forth at length. 44. Admitted. 45. Denied. 46. Admitted in part and denied in part. It is admitted that Plaintiff was provided an extended warranty. It is denied that said warranty was granted for the reasons stated. 47. Denied. 48. Admitted. 49. Admitted upon information and belief. 50. Admitted upon information and belief. 51. Admitted. 52. Denied. The averments of paragraph 52(a) through (e) set forth conclusions of law to which no response is required. 53. Denied. The averments of paragraph 53 are directed to other Defendants. 54. Denied. 55. Denied. The averments of paragraph 55 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. - 5 - 56. Denied. The averments of paragraph 56 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. COUNT III Pennsylvania Unfair Trade Practices and Consumer Protection Law 57. The answers to paragraphs 1 through 56 above are incorporated herein by reference as if textually set forth at length. 58. Denied. The averments of paragraph 58 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 59. Admitted upon information and belief. 60. Denied. The averments of paragraph 60 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 61. (a)-(b) Denied. 62. Denied. 63. Denied, 64. Denied, 65. Admitted in part and denied in part. It is admitt,ed that Plaintiffs hearing aid system required servicing. It is denied that said servicing was the result of any improper conduct on the part of answering Defendant. - 6 - 66. Denied. After reasonable investigation, answerIng Defendant is without information sufficient to respond to the averments of paragraph 66, strict proof being demanded attrial. 67. Denied. After reasonable investigation, answenng Defendant is without information sufficient to respond to the averments of paragraph 67, strict proof being demanded at trial. 68. itself. 69. itself. 70. itself. The averments of paragraph 68 relate to a document in writing which speaks for The averments of paragraph 69 relate to a document in writing which speaks for The averments of paragraph 70 relate to a document in writing which speaks for 71. Denied. After reasonable investigation, answenng Defendant is without information sufficient to respond to the averments of paragraph 71, stnct proof being demanded at trial. 72. Denied. 73. The averments of paragraph 73 are directed to other Defendants. 74. Denied. The averments of paragraph 74(a) through (b) represent conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. - 7- COUNT IV Breach of Express Warrantv of Merchantability 75. The answers to paragraphs 1 through 27 above are incorporated herein by reference as if textually set forth at length. 76. The averments of paragraph 76 are directed to other Defendants and are documents in writing which speak for themselves. 77. The averments of paragraph 77 are directed to other Defendants and are documents in writing which speak for themselves. 78. The averments of paragraph 78 are directed to other Defendants and are documents in writing which speak for themselves. 79. Denied. 80. Denied. 81. Denied. 82. Admitted in part and denied in part. It is admitted that Plaintiffs hearing aids required service. It is denied that they were the result of any impropriety on the part of answering Defendant. 83. Denied. 84. Admitted. 85. The averments of paragraph 85 relate to documents in writing which speak for themselves. 86. Denied. The extended warranties are documents in writing which speak for themselves. 87. Denied. The averments of paragraph 87 are directed to other Defendants. - 8 - 88. Denied. The averments of paragraph 88 are directed to other Defendants. 89. Denied. The averments of paragraph 89 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. COUNT V Breach of Express Warrantv of Merchantability 90. The answers to paragraphs 1 through 42 above are incorporated herein by reference as if textually set forth at length. 91. Admitted upon information and belief. 92. Denied. 93. Admitted upon information and belief. 94. Denied. 95. Admitted. It is admitted that Plaintiffs hearing aids required additional service which was coordinated through Gable. 96. Admitted upon information and belief. 97. Admitted. 98. Admitted. 99. (a)-(e) Denied. The averments of paragraphs 99(a) through (e) set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 100. Denied. The averments of paragraphs 100 are directed to another Defendant. - 9- ]01. Denied. The averments of paragraph 101 are denied as conclusions of law. By way of further response, said allegations are denied, strict proof being demanded at trial. 102. Denied. 103. Denied. The averments of paragraph 103 are denied as conclusions of law. By way offurther response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. COUNT VI Pellllsvlvania Unfair Trade Practices and Consumer Protection Law 104. The answers to paragraphs I through 56 above are incorporated herein by reference as if textually set forth at length. 105.-121. The averments of paragraph 105 through 121 are duplicates of the averments set forth in Plaintiffs Complaint in paragraphs 58 through 74. As such, Defendant reiterates its responses as set forth therein. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. II. NEW MA TIER 122. Plaintiff may have abused or misused the product. 123. Plaintiff may have acted negligently in the care and use of the hearing aid. 124. Plaintiffs difficulty in using the aforesaid hearing aid devices was in part and/or in whole caused by his excessive earwax condition which impaired and damaged the units. 125. Plaintiffs claims may be barred by the doctrine of assumption of the risk and/or the statute oflimitations. - 10- 126. Plaintiffs' Complaint fails to state a claim upon which relief can be granted. 127. No act or omission on the part of answering Defe.ndant was the proximate cause or contributing cause of the danlages allegedly suffered by the Plaintiff. 128. Any liability of answering Defendant, such liability being expressly denied, is barred and/or limited by the intervening or superseding negligence or other tortuous conduct of parties for whose conduct Defendants are not responsible. 129. Plaintiffs claims are barred in whole or in part by the Plaintiffs spoliation of the evidence thus prejudicing answering Defendant's ability to defend their case. 130. If answering Defendant is deemed to be responsible for the product at issue, that product was not defective in design or in any other respect at the time for which answering Defendant is deemed responsible for the product. 131. Some or all of the claims of the Plaintiff against answering Defendant is barred in whole or in part by the doctrine oflaches. 132. Plaintifffailed to mitigate his damages. 133. Plaintiffs claims are barred in whole or in part by the doctrine of accord and satisfaction. 134. Plaintiffs claims are barred in whole or in part by Plaintiffs use and enjoyment of the product. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. - 11 - III. NEW MATTER PURSUANT TO PA.R.C.P. 2252(d) 135. The averments of paragraphs I through 134 above are incorporated herein by reference as if textually set forth at length. 136. Answering Defendant, Gable Associates Hearing Aid Services ("Gable") avers that if Plaintiff sustained any damages as is alleged in his Complaint, which is hereby specifically denied, then Defendant, Siemens Hearing Instruments, Inc., ("Siemens") is alone liable or liable over to it or jointly or severally liable for said damages, any liability of the answering Defendant Gable being hereby expressly denied. 137. Answering Defendant Gable hereby crossclaims against Defendant Siemens to protect its right of indemnity and contribution, and in the event that it is judicially determined that Defendant Gable is jointly or severally liable to Plaintiff, then Defendant Siemens is liable over to Defendant Gable the existence of any liability on the part of the answering Defendant being hereby expressly denied. WHEREFORE, Defendant Gable avers that it is not liable to Plaintiff in the within cause of action and requests your Honorable Court to dismiss the Complaint filed against it; AND IN THE AI. TERNA TIVE, avers that if Plaintiff is entitled to recover upon his Complaint, then Defendant Siemens is solely liable to Plaintiff; and further avers that if it should be found that Defendant Gable is in any way liable to Plaintiff, then Siemens is jointly and/or severally liable with answering Defendant or liable over to answering Defendant. BUZGON DAVIS LAW OFFICES BY: ~- oble, Esquire-Attorney I.D. #72808 525 South ighth Street-Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Fax: (717) 274-1752 E-Mail: sgrenoble@buzgondavls.com Attorneys for Defendant, Gable Associates Hearing Aid Services - 12- IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY QUENTIN COOPER, Plaintiff NO. 05-3003 vs. CIVIL ACTION - LAW SIEMENS HEARING INSTRUMENTS, INC., and : GABLE ASSOCIATES HEARING AID SERVICES, JURY TRIAL DEMANDED Defendant AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) I, Janelle K. Worcester, an employee of the law firm of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, Gable Associates Hearing and Services, being duly sworn according to law, depose and say that I mailed on December 12, 2005, for filing in the Office of the Prothonotary of Cumberland County, the original ANSWER, NEW MATTER AND NEW MATTER PURSUANT TO PA.R.C.P. 2252 (d) OF GABLE ASSOCIATES HEARING AID SERVICES and that I mailed, by First Class mail, in a postpaid envelope, a true and correct copy to Nichole M. Walters, Esquire, The Elder Law Clinic, The Dickinson School of Law of the Pennsylvania State University, 150 South College Street, Carlisle, Pennsylvania 17013, Attomey for Plaintiff, and Kristin M. Hynd, Esquire, Dechert, LLP, 4000 Bell Atlantic Tower, 1717 Arch Street, Philadelphia, P A 19103-2793, Attorney for Siemens Hearing. Sworn to and subscribed before me this 12th day of December, A.D., 2005. "-. '\. I~ (;~N~Lt~ ~~iCESTER , \, &7':lLJ COMMONw JlI OF P NNSYI; NOlaIfal Stial Amanda Lee Robinson, Notary PublIc CIty of Lebanon, Lebanon County My Commission ExpIres Jan. 3, 2Oll9 Member, Pennaylvania Assoc!allon of Notaries IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED 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 of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIA nON 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 NOTICIA USTED HA SIDO DEMANDADA EN CORTE. Si usted quiere defellderse de e stas demandas expuestas en las paginas siguientes, usted tielle viente (20) dias de plazo al partir de la fecha de la demanda y la notificaci6n. Usted debe presentar una apariellcia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defellsas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificaci6n y por cualquier queja 0 alivio que es pedido en la petici61l de demanda. U sted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE EST A DEMANDA A UN ABODGADO INMEDIA T AMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, V A Y A EN PERSONA 0 LLAME POR TELFFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA A VERlGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Nichole M. Walters Supreme Court No. 84478 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 2 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. Defendant JURY TRIAL DEMANDED Gable Associates Hearing Aid Services Amended Complaint Plaintiff Quentin Cooper, by and through his attorneys, Nichole M. Walters, Esq. and The Elder Law Clinic of The Pennsylvania State University Dickinson School Law state the following in support of this Complaint: Statement of Facts I. Plaintiff is Quentin Cooper, a sui juris adult, residing at 561 Cambria Avenue, Harrisburg, Dauphin County, Pennsylvania, 17111. 2. Defendant Siemens Incorporated is a Delaware Corporation with a service address of c/o Corporation Service Company, as Registered Agent for Service, 2704 Commerce Drive, Harrisburg, Pennsylvania 17110. 3. Defendant Gable and Associates, is a Pennsylvania Corporation having a business address of3461 Market Street, Suite 105, Camp Hill, Pennsylvania 17011. 4. Jurisdiction and venue are proper in that the actions referred to throughout this pleading occurred in Cumberland County, Pennsylvania, and the sale of the item to Plaintiff occurred in Cumberland County, Pennsylv,mia. 3 5. In 1951, Plaintiff sustained an occupational injury as a Pennsylvania State Policeman, resulting in permanent, bilateral hearing impairment. 6. In the fall of 2000, Gable Associates Hearing and Services ("Gable Associates"), a local hearing aid provider, performed hearing tests on Plaintiff. 7. Gable Associates recommended to the Plaintiff the Siemens PRISMA Lifesound ITE hearing aid system ("Hearing Aid"), model number 005025398, which works as a dual system requiring both the left and right ear piece to work simultaneously to be effective. 8. On, or about, October 19,2000, following the recommendation of Gable Associates, the Plaintiff purchased the Hearing Aid for $5500. 9. The purchase came with a two-year warranty. A true and correct copy ofthe purchase contract is attached hereto as Exhibit "A" and incorporated by reference. 10. The general description of the warranty is located in Siemens' General Information brochure. A true and correct copy of the description is attached and labeled as Exhibit "B", hereto and incorporated by reference. 11. On, or about, February 1,2001 the left Hearing Aid began having episodes where it would fail to turn on. If the Hearing Aid did turn on, it would whistle for at least the first hour of use. 12. The Plaintiff took the left Hearing Aid to Gable Associates for repair and, in-turn, Gable Associates sent it to Siemens for repair service. 13. On February 27,2002, the Plaintiff picked up the left Hearing Aid from Gable Associates and was advised by Gable Associates that it was in the Plaintiff s best interests to purchase a Waxman 2000, a vacuum devic,: that helps to remove 4 moisture from hearing aids and ear molds in order for a hearing aid system to function properly. 14. On February 27,2002, the Plaintiff purchased a Waxman 2000 from Gable Associates for $25.00. 15. During the drive home from Gable Associates on February 27,2002, the left Hearing Aid again failed to function. 16. In the fall of2002, the original warranty for the Hearing Aids expired. 17. The Plaintiff was given an additional six month warranty after the original warranty expired because at the time of warranty's expiration, the left Hearing Aid was being serviced. The repair to the left Hearing Aid was not successful as it continued to intermittently cease working. 18. On May 23,2003, the left Hearing Aid failed to function properly and the Plaintiff again returned to Gable Associates for repair service. 19. On May 23,2003, the Plaintiff paid Gable Associates $290 for repair ofthe left Hearing Aid and an extended twelve-month warranty for the left Hearing Aid. This warranty expired June 6, 2004. A true and correct copy of the receipt for the warranty is attached hereto as "Exhibit C" and is hereby incorporated by reference. 20. In July, 2003, the Plaintiffs right Hearing Aid stopped working when its microphone failed to function; subsequently, the Plaintiff took the Hearing Aid to Gable Associates for repair. 21. On July 18,2003, the Plaintiff paid $290 for repairs to the right Hearing Aid and an extended twelve-month warranty on the right Hearing Aid. This warranty 5 expired July 31, 2004. A true and correct copy of the receipt for the warranty is attached hereto as "Exhibit D" and is hereby incorporated by reference. 22. On July 21, 2003, the Plaintiff called the Siemens service center but was unable to hear the representative because he did not have functional hearing aids. Plaintiff s spouse spoke with the customer representative, "Meghan." 23. Despite being provided with the serial numbers of the Hearing Aids, the customer service representative made no apparent attempt to find information regarding the Plaintiff s purchase. 24. When the Plaintiff s spouse asked about a possible refund for the Hearing Aids, the customer service representative told the Plaintiffs spouse to "see a therapist." 25. On November 3, 2003, the casing door broke off ofthe left Hearing Aid. 26. The left Hearing Aid with a broken casing door required service repair and was refitted with reconditioned parts. 27. To date, the Siemens Hearing Aid system that Plaintiff bought from Gable and Associates has not worked in a manner it was purported to and has required numerous repairs. Further, despite numerous repairs made while under warranty, the Hearing Aid system continues to fail to operate properly and is nonfunctional for the Plaintiff. COUNT I: Breach of Express Warranty of Merchantability 28. Paragraphs 1 through 27 are incorporated by reference. 6 29. Siemens states in their General Information brochure that Siemens products are internationally known for their "superior performance and durability." See Exhibit B. 30. The Siemens' brochure states that they are the world's largest manufacturer of hearing aids. See Exhibit B. 31. The Siemens' brochure expressly states that their merchandise provides superior performance and that the model purchased by Plaintiff met strict quality assurance requirements. See Exhibit B. 32. Plaintiffs decision to purchase the $5500 Hearing Aids was based upon Gable Associates recommendation that the model was the "top-of-the-line" and on Siemens' reputation for quality instruments. 33. Siemens' dual-system Hearing Aid failed to meet its ordinary purpose of enabling Plaintiff to hear better because of the system's frequent failure to work and need of repair. 34. The Hearing Aids purchased by Plaintiff required frequent and repeated repair, and during some repairs, were rebuilt with both reconditioned and new parts. 35. Despite frequent service and repair, Plaintiffs Hearing Aids would intermittently stop working, would whistle for lengthy periods of time, and failed to work at all when Plaintiff was using a telephone. 36. Plaintiffs Hearing Aids have never performed as promised and he has never been able to use them in a consistent and reliable manner in order to maximize his hearing ability. 7 37. Because of continued problems with the Hearing Aid system, Plaintiff purchased additional extended warranties for each hearing aid. 38. The extended warranty for the left Hearing Aid was purchased on May 5, 2003 and the extended warranty for the right Hearing Aid was purchased on July 18, 2003. See Exhibit C and D, respectively. 39. Plaintiff was told by Gable Associates that the extended warranties purchased on May 5, 2003 (for the left Hearing Aid) and on July 18,2003 (for the right Hearing Aid) would fall under the same provisions as that of the original warranty. 40. Siemens breached its express warranty of merchantability by repeatedly failing to repair or replace Plaintiff s faulty Hearing Aids to meet the "performance specifications of the model." See Exhibit B. 41. Siemens breached its express warranty of merchantability by failing to provide a quality and reliable dual-system hearing aid that provided a superior performance. 42. Gable Associates breached its express warranty of merchantability by selling to Plaintiff what they described as a "top-of-the-line" hearing aid system that would improve his hearing. WHEREFORE, Plaintiff Quentin Cooper requests that this Honorable Court enter judgment against Siemens Hearing Instruments, Inc. in an amount in excess of$6080 ($5000 for original hearing aids, $500 for original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy deemed just and appropriate. 8 COUNT II: Breach of Implied Warranty of Merchantability 43. Paragraphs 1 through 42 are incorporated by reference. 44. In October 2000, the Plaintiff bought from Gable Associates the Siemens dual- system Hearing Aids for the ordinary purpose of improving his ability to hear. 45. The Hearing Aids malfunctioned repeatedly during and beyond the first warranty, which expired in 2002. 46. Plaintiff was granted an additional six month warranty at no charge once the original warranty expired because the Hearing Aids continued to malfunction and frequently required servicing. 47. The Hearing Aids continued to malfunction and failed to work after the six month warranty expired. 48. Plaintiffs left Hearing Aid required further repair in May 2003. On May 23, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty. See Exhibit C. 49. The twelve month warranty purchased for the left Hearing Aid on May 23, 2003 expired on June 6, 2004. 50. Plaintiffs right Hearing Aid required further repair in July 2003. On July18, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty, the receipt of which is labeled as Exhibit D. 51. The twelve month warranty for the right Hearing Aid purchased on July 18, 2003 expired on July 31, 2004. 9 52. The Siemens Hearing Aid system sold to Plaintiff by Gable Associates failed to meet the ordinary purpose for which such goods are used; namely, to minimize hearing impairment through a reliable and workable instrument. a. At least one of the Hearing Aids frequently stops working while resting in the ear and because the hearing aids are a dual-system, when one piece stops working, the other cannot function; b. The Siemens Hearing Aids Plaintiff purchased have worked erratically, if at all, and have required extensive servicing and repair; c. The Hearing Aids, even after multiple repairs, emit a high-pitched noise when used while talking on the telephone; d. Because of this high-pitched noise, Plaintiff has never been able to use the Hearing Aids while on the telephone; e. Due to the extensive number of repairs and service time required to attempt to make the Hearing Aids operational, Plaintiff was unable to have any use of the hearing system for successive weeks at a time. 53. Plaintiff relied on the promissory language of Siemens' General Information brochure in his decision to purchase what was purported to be exceptional quality hearing aids. 54. Further, in his decision to purchase the Siemens' dual-system Hearing Aids, Plaintiff relied on the sales statements by Gable Associates that the Siemens' brand was a "top-of-the-line" model. 5 5. The Hearing Aids have necessitated repair on at least twelve separate occasions, and have not met the standards described in the General Information brochure. 10 56. Defendants have breached the implied warranty of merchantability of the Hearing Aids sold to Plaintiff because they have malfunctioned since shortly after purchase and have failed to assist the Plaintiff in the manner to which they were intended, namely, to help the Plaintiff hear better. WHEREFORE, Plaintiff Quentin Cooper requests that this honorable court enter judgment against Siemens Hearing Instruments, Inc. in an amount in excess of $6080 ($5000 for original hearing aids, $500 for the original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy deemed just and appropriate. COUNT III: PENNSYL VANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 57. Paragraphs 1 through 56 are incorporated by reference. 58. At all times relevant hereto, Defendants were engaged in trade or commerce as defined in the Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S. ~ 201-3. 59. The Plaintiff bought from Gable Associates the dual-system Hearing Aids manufactured by Siemens for the particular purpose of improving his specific type of hearing impairment. 60. The Plaintiffs purchase of the Hearing Aids is a consumer transaction. 61. The Defendant's actions constitute unfair trade practices as defined by 73 Pa.C.S. ~ 201-2(4) and 73 Pa.C.S. ~ 201-3 in that the Defendants: a. represented that the hearing aids were of a particular standard, quality, or grade, when it was of another; 11 b. made repairs, improvements or replacements to the property of the Plaintiffs Hearing Aids of a nature or quality inferior to the standard specified in the extended warranty. 62. Defendant's actions are also unfair or deceptive acts or practices as defined by regulations promulgated under 73 P.S. 9201-3.1 in that they knew or should have known that repair and service done on the Plaintiffs Hearing Aides was of a nature or quality inferior to the standard specified in the brochure, yet failed to disclose this defect to the Plaintiff. 63. The Plaintiff relied upon Gable Associates to sell him a Hearing Aid system that would reliably turn on, be free from high-pitched noise, and provide, at a minimum, some measure of improvement to his hearing impairment. 64. The Plaintiffs Hearing Aid system has failed to work reliably, frequently emits a high-pitched noise, and has not served as reliable means of enhancing the Plaintiffs ability to hear. 65. The Plaintiffs hearing aid system has required servicing on at least twelve separate occasions. 66. During each separate service repair, the Plaintiff was without the use of any hearing aid assistance because the dual-system he purchased requires each hearing aid to function simultaneously. 67. Plaintiff complied with the Siemens warranty restriction and had the hearing aids serviced only by authorized Siemens service centers, namely Gable Associates. 12 68. Siemens General Information brochure which accompanied the Hearing Aids, attested to Siemens commitment to 85 years of manufacturing and expertise in providing "superior performance" hearing aid products. See Exhibit B. 69. Siemens General Information brochure also notes that each hearing instrument is recognized for "excellent electroacoustic characteristics" and each must meet "strict quality assurance requirements" before leaving Siemens' premises. See Exhibit B. 70. Siemens General Information brochure also stated that, when hearing aids were to be serviced for repair, all covered parts were to be repaired or replaced with new or reconditioned components to meet the specifications ofthe model being serviced. See Exhibit B. 71. Plaintiff s Hearing Aids required repeated service repairs, and on occasion, had reconditioned parts used to substitute broken ones. 72. Despite repairs and replacement of parts, the quality of the Hearing Aids continued to be inferior to, and below the standard of, that promised in the brochure. 73. Siemens' failure to adequately repair the Hearing Aids necessitated Plaintiffs purchase of an extended warranty for each hearing piece. 74. The Plaintiff has been subject to multiple damages secondary to the failure of the nonfunctional Hearing Aids, to wit: a. The Plaintiff has paid, at a minimum, $6800 for nonfunctional equipment that has not enabled him to hear better to any degree. 13 b. Plaintiff has suffered loss of enjoyment due to the hearing aids not working and better enabling him to hear: 1. The Plaintiff must use the closed captioning system when watching television because of his inability to hear without assistance. 2. The Plaintiff is unable to have proper telephone conversations because he cannot hear through the receiver. 3. The Plaintiff made numerous inconvenient and time-consuming trips to Gable Associates to have the hearing aids serviced. WHEREFORE, Plaintiff Quentin Cooper respectfully requests that this Honorable Court enter judgment against Defendant Siemens Hearing Instruments, Inc. in an amount in excess of $6080, plus treble damages and attorney fees as permitted by 73 Pa. C.S.A. 9201-9.2, costs of suit, and any other remedy deemed just and appropriate. COUNT IV: Breach of Express Warranty of Merchantability 75. Paragraphs 1 through 27 are incorporated by reference. 76. Siemens states in their General Information brochure that Siemens products are internationally known for their "superior performance and durability." (Exhibit B) 77. The Siemens' brochure states that they are the world's largest manufacturer of hearing aids. See Exhibit B. 14 78. The Siemens' brochure expressly states that their merchandise provides superior performance and that the model purchased by Plaintiff met strict quality assurance requirements. See Exhibit B. 79. Plaintiff's decision to purchase the $5500 Hearing Aids was based upon Gable Associates recommendation that the model was the "top-of-the-1ine" and on Siemens' reputation for quality instruments. 80. Siemens' dual-system Hearing Aid failed to meet its ordinary purpose of enabling Plaintiff to hear better because of the system's frequent failure to work and need of repair. 81. The Hearing Aids purchased by Plaintiff required frequent and repeated repair, and during some repairs, were rebuilt with both reconditioned and new parts. 82. Despite frequent service and repair, Plaintiffs Hearing Aids would intetmittently stop working, would whistle for lengthy periods of time, and failed to work at all when Plaintiff was using a telephone. 83. Plaintiffs Hearing Aids have never performed as promised and he has never been able to use them in a consistent and reliable manner in order to maximize his hearing ability. 84. Because of continued problems with the Hearing Aid system, Plaintiff purchased additional extended warranties for each hearing aid. 85. The extended warranty for the left Hearing Aid was purchased on May 5, 2003 and the extended warranty for the right Hearing Aid was purchased on July 18, 2003. See Exhibit C and D, respectively. 15 86. Plaintiff was told by Gable Associates that the extended warranties purchased on May 5, 2003 (for the left Hearing Aid) and on July 18,2003 (for the right Hearing Aid) would fall under the same provisions as that of the original warranty. 87. Siemens breached its express warranty of merchantability by repeatedly failing to repair or replace Plaintiffs faulty Hearing Aids to meet the "performance specifications of the model." See Exhibit B. 88. Siemens breached its express warranty of merchantability by failing to provide a quality and reliable dual-system hearing aid that provided a superior performance. 89. Gable Associates breached its express warranty of merchantability by selling to Plaintiff what they described as a "top-of-the-line" hearing aid system that would improve his hearing. WHEREFORE, Plaintiff Quentin Cooper requests that this Honorable Court enter judgment against Gable Associates in an amount in excess of $6080 ($5000 for original hearing aids, $500 for original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy deemed just and appropriate. COUNT V: Breach of Implied Warranty of Merchantability 90. Paragraphs 1 through 42 are incorporated by reference. 91. In October 2000, the Plaintiff bought from Gable Associates the Siemens dua1- system Hearing Aids for the ordinary purpose of improving his ability to hear. 92. The Hearing Aids malfunctioned repeatedly during and beyond the first warranty, which expired in 2002. 16 93. Plaintiff was granted an additional six month warranty at no charge once the original warranty expired because the Hearing Aids continued to malfunction and frequently required servicing. 94. The Hearing Aids continued to malfunction and failed to work after the six month warranty expired. 95. Plaintiffs left Hearing Aid required further repair in May 2003. On May 23, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty. See Exhibit C. 96. The twelve month warranty purchased for the left Hearing Aid on May 23,2003 expired on June 6, 2004. 97. Plaintiffs right Hearing Aid required further repair in July 2003. On Julyl8, 2003, Plaintiff paid Gable Associates $590 for the repairs to the Hearing Aid and for a twelve month warranty, the receipt of which is labeled as Exhibit D. 98. The twelve month warranty for the right Hearing Aid purchased on July 18,2003 expired on July 31, 2004. 99. The Siemens Hearing Aid system sold to Plaintiff by Gable Associates failed to meet the ordinary purpose for which such goods are used, namely, to minimize hearing impairment through a reliable and workable instrument; To wit: a. At least one ofthe Hearing Aids frequently stops working while resting in the ear and because the hearing aids are a dual-system, when one piece stops working, the other cannot function; b. The Siemens Hearing Aids Plaintiff purchased have worked erratically, if at all, and have required extensive servicing and repair; 17 c. The Hearing Aids, even after multiple repairs, emit a high-pitched noise when used while talking on the telephone; d. Because of this high-pitched noise, Plaintiff has never been able to use the Hearing Aids while on the telephone; e. Due to the extensive number of repairs and service time required to attempt to make the Hearing Aids operational, Plaintiff was unable to have any use of the hearing system for successive weeks at a time. 100. Plaintiff relied on the promissory language of Siemens' General Information brochure in his decision to purchase what was purported to be exceptional quality hearing aids. 101. Further, in his decision to purchase the Siemens' dual-system Hearing Aids, Plaintiff relied on the sales statements by Gable Associates that the Siemens' brand was a "top-of-the-line" model. I 02. The Hearing Aids have necessitated repair on at least twelve separate occasions, and have not met the standards described in the Gem:ral Information brochure. 103. Defendants have breached the implied warranty of merchantability of the Hearing Aids sold to Plaintiff because they have malfunctioned since shortly after purchase and have failed to assist the Plaintiff in the manner to which they were intended, namely, to help the Plaintiff hear better. WHEREFORE, Plaintiff Quentin Cooper requests that this honorable court enter judgment against Gable Associates, in an amount in excess of $6080 ($5000 for original hearing aids, $500 for the original warranty and $580 for extended warranties and repair fees), plus costs of suit and any other remedy d(:emedjust and appropriate. 18 COUNT VI: PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 104. Paragraphs I through 56 are incorporated by reference. 105. At all times relevant hereto, Defendants were engaged in trade or commerce as defined in the Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S. g 201-3. 106. The Plaintiff bought from Gable Associates the dual-system Hearing Aids manufactured by Siemens for the particular purpose of improving his specific type of hearing impairment. 107. The Plaintiffs purchase of the Hearing Aids is a consumer transaction. 108. The Defendants actions constitute unfair trade practices as defined by 73 Pa.C.S. g 201-2(4) and 73 Pa.C.S. g 201-3 in that the Defendants: a. represented that the hearing aids were of a particular standard, quality, or grade, when it was of another; b. made repairs, improvements or replacements to the property of the Plaintiffs Hearing Aids of a nature or quality inferior to the standard specified in the extended warranty. 109. Defendants actions are also unfair or deceptive acts or practices as defined by regulations promulgated under 73 P.S. g 201-3.1 in that they knew or should have known that repair and service done on the Plaintiff's Hearing Aides was of a nature or quality inferior to the standard specified in the brochure, yet failed to disclose this defect to the Plaintiff. 19 110. The Plaintiff relied upon Gable Associates to sell him a Hearing Aid system that would reliably turn on, be free from high-pitched noise, and provide, at a minimum, some measure of improvement to his hearing impairment. Ill. The Plaintiffs Hearing Aid system has failed to work reliably, frequently emits a high-pitched noise, and has not served as reliable means of enhancing the Plaintiffs ability to hear. 112. The Plaintiff s hearing aid system has required servicing on at least twelve separate occasions. lB. During each separate service repair, the Plaintiff was without the use of any hearing aid assistance because the dual-system he purchased requires each hearing aid to function simultaneously. 114. Plaintiff complied with the Siemens warranty restriction and had the hearing aids serviced only by authorized Siemens service centers, namely Gable Associates. liS. Siemens General Information brochure which accompanied the Hearing Aids, attested to Siemens commitment to 85 years of manufacturing and expertise in providing "superior performance" hearing aid products. See Exhibit B. 116. Siemens General Information brochure also notes that each hearing instrument is recognized for "excellent electroacoustic characteristics" and each must meet "strict quality assurance requirements" before leaving Siemens' premises. See Exhibit B. 117. Siemens General Information brochure also stated that, when hearing aids were to be serviced for repair, all covered parts were to be repaired or replaced with 20 new or reconditioned components to meet the specifi.cations of the model being serviced. See Exhibit B. 118. Plaintiff s Hearing Aids required repeated service repairs, and on occasion, had reconditioned parts used to substitute broken ones. 119. Despite repairs and replacement of parts, the quality of the Hearing Aids continued to be inferior to, and below the standard of, that promised in the brochure. 120. Siemens' failure to adequately repair the Hearing Aids necessitated Plaintiff s purchase of an extended warranty for each hearing piece. 121. The Plaintiff has been subject to multiple damages secondary to the failure of the nonfunctional Hearing Aids, to wit: a. The Plaintiff has paid, at a minimum, $6800 for nonfunctional equipment that has not enabled him to hear better to any degree; b. Plaintiff has suffered loss of enjoyment due to the hearing aids not working and better enabling him to hear: I) The Plaintiff must use the closed captioning system when watching television because of his inability to hear without assistance; 2) The Plaintiff is unable to have proper telephone conversations because he cannot hear through the receiver; 3) The Plaintiff made numerous inconvenient and time-consuming trips to Gable Associates to have the hearing aids serviced. 21 WHEREFORE, Plaintiff Quentin Cooper respectfully requests that this Honorable Court enter judgment against Defendant Gable Associates in an amount in excess of $6080, plus treble damages and attorney fees as permitted by 73 Pa. C.S.A. S 201-9.2, costs of suit, any other remedy deemed just and appropriate Respectfully Submitted, <::'"' _. Dated: \ 0-- / /r.. /,),))'5 , '\ ". .~ :> ,-- Dale A. Tice Certified Legal Intern -..--"- ry) vi )^ A".M . '11Ll. I.{) {JJ-Luw Nichole M. Walters Supreme Court Number 84478 The Elder Law Clinic The Dickinson School of Law of The Pennsylvania State University 150 South College Street Carlisle, PA 17013 (717) 240-5216 22 --1 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on December ~, 2005, I served the foregoing Amended Complaint, by placing true and correct copies of the same via First Class Mail, postage prepaid, addressed as follows: Gable Associates Hearing Aid Services c/o Scott L. Grenoble, Esquire Buzgon Davis Law Office 525 South Eighth Street P.O. Box 494000 Lebanon, PA 17042-0049 Siemens Hearing Instruments Inc. c/o Kristin M. Hynd, Esquire Law Offices of Dechert LLP 1717 Arch Street Bell Atlantic Tower Philadelphia, PA 19103 By: c ~"---- ~~ ,,"- Dated: \J- /11. /Ji)rs , v Certified Legal Intern Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, P A 17013 (717) 240-5152 23 -i j \ j'1 .I, ! rv'j; ,4.l 1 'i , Sf'ln.,l ~-'I.) ,,",vi !,. '" f" -"vi ~ \). l- I "1 ~. ~~ . . .< LINDA C. KIRBY, Plaintiff vs. ARTHUR L. KIRBY, Defendant AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3024 CIVIL IN RE: PLAINTIFF'S MOTION TO COMPEL ORDER I" day of December, 2005, argument on the plaintiffs motion to compel schedule for December 16,2005, is continued generally, to be rescheduled at the request of either party. ~Cy Johnston-Walsh, Esquire For the Plaintiff ~wrence Rosen, Esquire . -;;:;; "- For the Defendant ~ 6rY'( Y ,1m \ R~{J .8 \\ -\\.; \ t- BY THE COURT, /l/j 'iif,:VA1/\Sl'-,tf'..}jd Ajj'~(Y.Y; " "';---'~'\.-:-::,f'H18 o I : lJ Wd 91 :130 SOOZ Atrv10>K)H.Lo.:.~d 3H1 jO :JJI:t-JO-(]31L:l #12 JENNIFER CLUTTON V. CHARLOTTE H. BOGART, ET AL : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 2005 - 3299 CIVIL TERM : CIVIL ACTION - LA W IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT WILLIAM KREISER, ESQUIRE, TO PLAINTIFF'S AMENDED COMPLAINT BEFORE BAYLEY, GUIDO, JJ. ORDER OF COURT AND NOW, this 14TH day of DECEMBER, 2005, Defendant William Kreiser's preliminary objections are DENIED. ~vin J. Murphy, Esquire 77 West Court Street Doylestown, Pa. 18901 /ames L. Goldsmith, Esquire . 3631 North Front Street ,~ Harrisburg, Pa. 17110 ~onald L. Finck, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, Pa. 17110-0950 Court Administrator Edward E. Guido, J. ~ '. \ 0 -.\ "1 ,,,,.1_... 7 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY QUENTIN COOPER, Plaintiff NO. 05-3003 vs. CIVIL ACTION - LAW SIEMENS HEARING INSTRUMENTS, INC., and GABLE ASSOCIATES HEARING AID SERVICES, JURY TRIAL DEMANDED Defendants NOTICE TO PLEAD To Plaintiff: Quentin Cooper You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. ANSWER OF GABLE ASSOCIATES HEARING AID SERVICES TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes the Defendant, Gable Associates Hearing Aid Services, by its attorneys, Buzgon Davis Law Offices, and files this Answer and New Matter, respectfully averring as follows: I. ANSWER I. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted. 4. Denied. The averments of paragraph 4 set forth conclusions of law to which no response is required. 5. Admitted upon information and belief. 6. Admitted. 7. Denied. 8. Admitted in part and denied in part. It is denied that Gable Associates made that specific recommendation. However, it is admitted that Plaintiff purchased a hearing aid from Gable Associates. 9. Denied. The claimed warranty is a document in writing and speaks for itself. 10. Denied. The claimed warranty is a document in writing and speaks for itself. II. Admitted in part and denied in part. It is admitted that Plaintiff experienced some difficulties with the hearing aids. 12. Admitted. 13. Admitted in part and denied in part. It is admitted that Plaintiff picked up the left hearing aid on or about February 27, 2002. It is denied that Plaintiff was advised that it was in his "best interests" to purchase any particular device. 14. Admitted upon information and belief. 15. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 15, strict proof being demanded at trial. 16. Denied. The warranty is a document in writing and speaks for itself. The expiration of the warranty, ifany, is subject to said warranty terms and conditions. 17. Admitted in part and denied in part. It is admitted that an additional warranty was extended. The remaining averments are denied, strict proof being demanded at trial. 18. Admitted in part and denied in part. It is admitted that Plaintiff returned to Gable Associates for additional service. It is denied that the hearing aid failed to function properly. - 2- 19. Denied. The documents which are referenced in paragraph 19 are documents in writing and speak for themselves. 20. Admitted in part and denied in part. It is admitted that Plaintiff returned the hearing aid to Gable Associates for repair. The specific cause for the failure is denied, strict proof being demanded at trial 21. Admitted in part and denied in part. The documents which are referenced III paragraph 21 are documents in writing which speak for themselves. 22. Denied. After reasonable investigation, Defendant IS without sufficient information to respond to the averments of paragraph 22, strict proof being demanded at trial. 23. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 23, strict proof being demanded at trial. 24. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 24, strict proof being demanded at trial. 25. Denied. After reasonable investigation, Defendant is without sufficient information to respond to the averments of paragraph 25, strict proof being demanded at trial. 26. Admitted upon information and belief. 27. Denied. COUNT I Breach of Express Warranty of Merchantability 28. The answers to paragraphs I through 27 above are incorporated herein by reference as if textually set forth at length. 29. The statements are set forth in documents in writing and speak for themselves. 30. The statements are set forth in documents in writing and speak for themselves. - 3 - 31. The statements are set forth in documents in writing and speak for themselves. 32. Denied. After reasonable investigation, answering Defendant is without information sufficient to respond to the averments of paragraph 32, strict proof being demanded at trial. 33. Denied. After reasonable investigation, answering Defendant is without information sufficient to respond to the averments of paragraph 33, strict proof being demanded at trial. 34. Denied. After reasonable investigation, answering Defendant is without information sufficient to respond to the averments of paragraph 34, strict proof being demanded at trial. 35. Admitted in part and denied in part. It is admitted that Plaintiff experienced difficulties with his hearing aid. However, upon information and belief, the difficulties Plaintiff experienced are the direct result of his own physical condition, i.e,. his generation of ear wax which interfered with the operation of the units. 36. Denied. 37. Admitted. 38. Admitted upon information and belief. 39. Denied. 40. Denied. The averments of paragraph 40 are directed to other Defendants. 41. Denied. The averments of paragraph 41 are directed to other Defendants. -4 - 42. Denied. The averments of paragraph 42 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. COUNT II Breach of Implied Warranty of Merchantability 43. The answers to paragraphs I through 43 above are incorporated herein by reference as if textually set forth at length. 44. Admitted. 45. Denied. 46. Admitted in part and denied in part. It is admitted that Plaintiff was provided an extended warranty. It is denied that said warranty was granted for the reasons stated. 47. Denied. 48. Admitted. 49. Admitted upon information and belief. 50. Admitted upon information and belief. 51. Admitted. 52. Denied. The averments of paragraph 52(a) through (e) set forth conclusions of law to which no response is required. 53. Denied. The averments of paragraph 53 are directed to other Defendants. 54. Denied. - 5- 55. Denied. The averments of paragraph 55 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 56. Denied. The averments of paragraph 56 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. COUNT III Pennsylvania Unfair Trade Practices and Consumer Protection Law 57. The answers to paragraphs I through 56 above are incorporated herein by reference as if textually set forth at length. 58. Denied. The averments of paragraph 58 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 59. Admitted upon information and belief. 60. Denied. The averments of paragraph 60 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 61. (a)-(b) Denied. 62. Denied. 63. Denied. 64. Denied. - 6 - 65. Admitted in part and denied in part. It is admitted that Plaintiffs hearing aid system required servicing. It is denied that said servicing was the result of any improper conduct on the part of answering Defendant. 66. Denied. After reasonable investigation, answenng Defendant is without information sufficient to respond to the averments of paragraph 66, strict proof being demanded at trial. 67. Denied. After reasonable investigation, answerIng Defendant is without information sufficient to respond to the averments of paragraph 67, strict proof being demanded at trial. 68. The averments of paragraph 68 relate to a document in writing which speaks for itself. 69. The averments of paragraph 69 relate to a document in writing which speaks for itself. 70. The averments of paragraph 70 relate to a document in writing which speaks for itself. 71. Denied. After reasonable investigation, answenng Defendant is without information sufficient to respond to the averments of paragraph 71, strict proof being demanded at trial. 72. Denied. 73. The averments of paragraph 73 are directed to other Defendants. - 7 - 74. Denied. The averments of paragraph 74(a) through (b) represent conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. COUNT IV Breach of Express Warrantv of Merchantability 75. The answers to paragraphs I through 27 above are incorporated herein by reference as if textually set forth at length. 76. The averments of paragraph 76 are directed to other Defendants and are documents in writing which speak for themselves. 77. The averments of paragraph 77 are directed to other Defendants and are documents in writing which speak for themselves. 78. The averments of paragraph 78 are directed to other Defendants and are documents in writing which speak for themselves. 79. Denied. 80. Denied. 81. Denied. 82. Admitted in part and denied in part. It is admitted that Plaintiffs hearing aids required service. It is denied that they were the result of any impropriety on the part of answering Defendant. 83. Denied. 84. Admitted. - 8 - 85. The averments of paragraph 85 relate to documents in writing which speak for themselves. 86. Denied. The extended warranties are documents III writing which speak for themselves. 87. Denied. The averments of paragraph 87 are directed to other Defendants. 88. Denied. The averments of paragraph 88 are directed to other Defendants. 89. Denied. The averments of paragraph 89 set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. COUNT V Breach of Express Warranty of Merchantability 90. The answers to paragraphs I through 42 above are incorporated herein by reference as if textually set forth at length. 91. Admitted upon information and belief. 92. Denied. 93. Admitted upon information and belief. 94. Denied. 95. Admitted. It is admitted that Plaintiffs hearing aids required additional service which was coordinated through Gable. 96. Admitted upon information and belief. 97. Admitted. - 9 - 98. Admitted. 99. (a)-(e) Denied. The averments of paragraphs 99(a) through (e) set forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 100. Denied. The averments of paragraphs 100 are directed to another Defendant. 10 1. Denied. The averments of paragraph 101 are denied as conclusions of law. By way of further response, said allegations are denied, strict proof being demanded at trial. 102. Denied. 103. Denied. The averments of paragraph 103 are denied as conclusions of law. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. COUNT VI Pennsylvania Unfair Trade Practices and Consumer Protection Law 104. The answers to paragraphs I through 56 above are incorporated herein by reference as if textually set forth at length. 105.-121. The averments of paragraph 105 through 121 are duplicates of the averments set forth in Plaintiffs Complaint in paragraphs 58 through 74. As such, Defendant reiterates its responses as set forth therein. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. [I. NEW MATTER 122. Plaintiff may have abused or misused the product. - 10- 123. Plaintiff may have acted negligently in the care and use of the hearing aid. 124. Plaintiffs difficulty in using the aforesaid hearing aid devices was in part and/or in whole caused by his excessive earwax condition which impaired and damaged the units. 125. Plaintiffs claims may be barred by the doctrine of assumption of the risk and/or the statute of limitations. 126. Plaintiffs' Complaint fails to state a claim upon which relief can be granted. 127. No act or omission on the part of answering Defendant was the proximate cause or contributing cause of the damages allegedly suffered by the Plaintiff. 128. Any liability of answering Defendant, such liability being expressly denied, is barred and/or limited by the intervening or superseding negligence or other tortuous conduct of parties for whose conduct Defendants are not responsible. 129. Plaintiffs claims are barred in whole or in part by the Plaintiffs spoliation of the evidence thus prejudicing answering Defendant's ability to defend their case. 130. If answering Defendant is deemed to be responsible for the product at issue, that product was not defective in design or in any other respect at the time for which answering Defendant is deemed responsible for the product. 131. Some or all of the claims of the Plaintiff against answering Defendant is barred in whole or in part by the doctrine of laches. 132. Plaintifffailed to mitigate his damages. 133. Plaintiffs claims are barred in whole or in part by the doctrine of accord and satisfaction. - II - 134. Plaintiffs claims are barred in whole or in part by Plaintiffs use and enjoyment of the product. WHEREFORE, Defendant, Gable Associates Hearing Aid Services, respectfully requests your Honorable Court to dismiss Plaintiffs Complaint with prejudice. III. NEW MATTER PURSUANT TO PAR.C.P. 2252(d) 135. The averments of paragraphs I through 134 above are incorporated herein by reference as if textually set forth at length. 136. Answering Defendant, Gable Associates Hearing Aid Services ("Gable") avers that if Plaintiff sustained any damages as is alleged in his Complaint, which is hereby specifically denied, then Defendant, Siemens Hearing Instruments, Inc., ("Siemens") is alone liable or liable over to it or jointly or severally liable for said damages, any liability of the answering Defendant Gable being hereby expressly denied. 137. Answering Defendant Gable hereby crossclaims against Defendant Siemens to protect its right of indemnity and contribution, and in the event that it is judicially determined that Defendant Gable is jointly or severally liable to Plaintiff, then Defendant Siemens is liable over to Defendant Gable the existence of any liability on the part of the answering Defendant being hereby expressly denied. WHEREFORE, Defendant Gable avers that it is not liable to Plaintiff in the within cause of action and requests your Honorable Court to dismiss the Complaint filed against it; AND IN THE ALTERNATIVE, avers that if Plaintiff is entitled to recover upon his Complaint, then Defendant Siemens is solely liable to Plaintiff; and further avers that if it should be found that - 12- Defendant Gable is in any way liable to Plaintiff, then Siemens is jointly and/or severally liable with answering Defendant or liable over to answering Defendant. BUZGON DAVIS LAW OFFICES BY: .( r .. --____~_.. , Scott L. Grenoble, Esquire Attorney J.D. #i72~8 525 South EigJuH Street Post Office Box 49 Lebanon, P A 17042-0049 (717)274-1421 Fax: (717)274-1752 E-Mail: sgrenoble@buzgondavis.com Attorneys for Defendant, Gable Associates Hearing Aid Services - 13 - VERIFICATION I, SCOTT L. GRENOBLE, do hereby verify that I am the attorney for Gable Associates Hearing Aid Services, in the within action. The facts set forth in the foregoing Answer to Plaintiff's Amended Complaint are true and correct to the best of my knowledge, information and belief, as conveyed to me by my client. My knowledge in this matter is based entirely on what has been passed to me by my client. I hereby further verify that I am signing this Verification on behalf of my client, pursuant to Rule I 024( c) of the Pennsylvania Rules of Civil Procedure, because my client is unavailable to timely file this Verification within the time allowed for filing a pleading. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. Date: December 28, 2005 }--- J SCOTty/GRENOBLE IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY QUENTIN COOPER, Plaintiff NO. 05-3003 vs. CIVIL ACTION - LAW SIEMENS HEARING INSTRUMENTS, INC., and : GABLE ASSOCIATES HEARING AID SERVICES, JURY TRIAL DEMANDED Defendant AFFIDA VIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) I, Janelle K. Worcester, an employee of the law firm of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, Gable Associates Hearing and Services, being duly sworn according to law, depose and say that I mailed on December 28, 2005, for filing in the Office of the Prothonotary of Cumberland County, the original ANSWER OF GABLE ASSOCIATES HEARING AID SERVICES TO PLAINTIFF'S AMENDED COMPLAINT and that I mailed, by First Class mail, in a postpaid envelope, a true and correct copy to Nichole M. Walters, Esquire, and Dale A. Tice, The Elder Law Clinic, The Dickinson School of Law of the Pennsylvania State University, 150 South College Street, Carlisle, Pennsylvania 17013, Attorneys for Plaintiff, and Kristin M. Hynd, Esquire, Dechert, LLP, 4000 Bell Atlantic Tower, 1717 Arch Street, Philadelphia, PA 19103- 2793, Attorney for Siemens Hearing. Sworn to and subscribed before me this 28th day of December, A.D., 2005. A~-'C^, 1\/ JANELLEK WORCESTER un\..-.; " ) --'-., .-- 1\',-. .....) ,>"; '-.:~) ......." <' ~~ ,") ':;;~, .-' --c .,\ (-." ,,) ., .~ -' . IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3;003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED ANSWER TO NEW MATTER AND NEW MATTER PURSUANT TO PA.R.C.P. 2252 (d) OF GABLE ASSOCIATES HEARING Am SERVICES AND NOW, comes the Plaintiff, Quentin Cooper, by 3md through its attorneys, Nichole M. Walters and the Elder Law Clinic of the Penn State Dickinson School of Law, and in support of its Answer to New Matter of Gable Associates Hearing Aid Services avers as follows: ANSWER TO NEW MATTER 122. Denied. It is specifically denied that the Plaintiff may have abused or misused the product. By way of further response, strict proof thereof is demanded at the time of trial if deemed relevant. 123. Denied. It is specifically denied that the Plaintiff may have acted negligently in the care and use ofthe hearing aid. By way of further response, strict proof thereof is demanded at tht: time of trial if deemed relevant. . 124. Denied. It is specifically denied that the Plaintiffs difficulty in using the aforesaid hearing aid was in any part due to an excessive earwax condition. By way of further response, strict proof thereof is demanded at the time of trial if deemed relevant. 125. Denied. The averments in paragraph 125 ofth,: Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 126. Denied. The averments in paragraph 126 of the: Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 127. Denied. The averments in paragraph 127 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 128. Denied. The averments in paragraph 128 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments arc denied. 129. Denied. The averments in paragraph 129 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 130. Denied. The averments in paragraph 130 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 2 , 131. Denied. The averments in paragraph 131 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 132. Denied. The averments in paragraph 132 ofth(~ Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 133. Denied. The averments in paragraph 133 ofth" Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 134. Denied. The averments in paragraph 134 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. ANSWER TO NEW MATTER PURSUANT TO PA.R.C.P. 2252 (d) 135. Paragraph 135 of the Defendant's New Matter Pursuant to PAR.C.P. 2252 (d) contains no averments to which a response :is necessary. To the extent that a response may be required, the Plaintiff incorporates paragraphs 122 to 134 of its Answer to New Matter by reference as if set forth herein at length. 136. Denied. The averments in paragraph 136 of the Defendant's New Matter Pursuant to PAR.C.P. 2252 (d) constitute conclusions oflaw to which no response is required. If a response is required, tile averments are denied. 3 4 137. Denied. Paragraph 137 of the Defendant's New Matter Pursuant to PAR.C.P. 2252 (d) contains no averments to which a response is necessary. To the extent that a response may be required, the averments are denied. WHEREFORE, the Plaintiffrespectfully requests that this Honorable Court enter judgment in its favor and against the Defendants in the amount demanded in its Complaint. Respectfully submitted, ~4/P- RoderIck F. Alberto Certified Legal Intern Dated: /;:? / 3O/0S '/ / '1\v(~~"IYI. \JJafH",-^^... Nichole M. Walters Supreme Court No. 84478 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 4 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on December 30 ,2005, I served the foregoing Answer to New Matter of Gable Associates Hearing Aid Services, by placing true and correct copies of the same via First Class Mail, postage prepaid, addressed as follows: Gable Associates Hearing Aid Services c/o Scott L. Grenoble, Esquire Buzgon Davis Law Office 525 South Eighth Street P.O. Box 494000 Lebanon, P A 17042-0049 Siemens He:aring Instruments Inc. c/o Kristin M. Hynd, Esquire Law Offices of Dechert LLP 1717 Arch Street Bell Atlantil: Tower Philadelphill, P A 19103 Dated: /'J.. ) 30) D'(, / J BY:X~~/~ / Roderick F. Alberto Certified Legal Intern Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, P A 17013 (717) 240.5152 5 () c (,,,) ;;:~ COO:) 0::_.., ,-. r':j ,-, (..) CJ o -'1 .., -I'. hlJ::! r'-' III 'r) ',) 2::",-, :', tp :'.l.'-:; '-IT; I -,,~ :.0 .-< Kristin M. Hynd, Esquire Pa. Id. No. 85725 DECHERT LLP 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA 19103 (215) 994-2643 kristin.hynd@dechert.com Attorney for Defendant Siemens Hearing Instruments, Inc. QUENTIN COOPER CUMBERLAND COUNTY COURT OF COMMON PLEAS PLAINTIFF v. CIVIL ACTION - LAW NO. 05-3003 SIEMENS HEARING INSTRUMENTS, INC. AND GABLE ASSOCIATES HEARING AID SERVICES JURY TRIAL DEMANDED DEFENDANTS ANSWER AND NEW MATTER OF DEF1:NDANT SIEMENS HEARING INSTRUMENTS. INC. Defendant Siemens Hearing Instruments, Inc. ("Defendant"), by and through its undersigned counsel, hereby responds to Plaintiffs Amended Complaint with the following Answer and New Matter: I. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph I. Accordingly, such allegations are denied. 2. Denied. Siemens Incorporated is not a defendant in this case. I 3. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 3. Accordingly, such allegations are denied. 4. The allegations in paragraph 4 constitute conclusions oflaw to which no response is required. 5. -8. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 5 through 8. Accordingly, such allegations are denied. 9. Denied. Defendant denies that a true and correct copy of a purchase contract, or any document for that matter, is attached as Exhibit A to the Amended Complaint. As to the remaining allegations of paragraph 9, Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations. Accordingly, such allegations are denied. 10. Denied. Defendant denies plaintiffs description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. Defendant further denies that a true and correct copy of its General Information For Hearing Aid Users brochure, or any document for that matter, is attached as Exhibit B to the Amended Complaint. 11. .18. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs II through 18. Accordingly, such allegations are denied. 2 19. Denied. Defendant denies that a true and correct copy of any receipt for a warranty, or any document for that matter, is attached as Exhibit C to the Amended Complaint. As to the remaining allegations of paragraph 19, Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations. Accordingly, such allegations are denied. 20. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 20. Accordingly, such allegations are denied. 21. Denied. Defendant denies that a true and correct copy of any receipt for a warranty, or any document for that matter, is attached as Exhibit D to the Amended Complaint. As to the remaining allegations of paragraph 21, Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations. Accordingly, such allegations are denied. 21. -27. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 21 through 27. Accordingly, such allegations are denied. 28. Defendant incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 29.-31. Denied. Defendant denies plaintiffs description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for i tsel f. 3 32. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 32. Accordingly, such allegations are denied. 33. The allegations in paragraph 33 constitute conclusions oflaw to which no response is required. To the extent this paragraph can be interprete:d to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 34.-39. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 34 through 39. Accordingly, such allegations are denied. 40.-42. The allegations in paragraph 40 through 42 constitute conclusions oflaw to which no response is required. 43. Defendant incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 44.-51. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 44 through 51. Accordingly, such allegations are denied. 52.-56. The allegations in paragraphs 52 through 56 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations offact, after reasonable investigation, Defendant is without knowledge or 4 information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 57. Defendant incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 58. The allegations in paragraph 58 constitute conclusions oflaw to which no response is required. 59. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 59. Accordingly, such allegations are denied. 60.-63. The allegations in paragraphs 60 through 63 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 64.-66. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 64 through 66. Accordingly, such allegations are denied. 67. The allegations in paragraph 67 constitute conclusions oflaw to which no response is required. To the extent this paragraph can be interpre((~d to contain allegations of 5 fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth ofthese allegations. Accordingly, such allegations are denied. 68.-70. Denied. Defendant denies plaintiffs description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for i tsel f. 71. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 71. Accordingly, such allegations are denied. 72.-74. The allegations in paragraphs 72 through 74 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations offact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 75. Defendant incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 76.-78. Denied. Defendant denies plaintiffs description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. 6 79. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 79. Accordingly, such allegations are denied. 80. The allegations in paragraph 80 constitute conclusions oflaw to which no response is required. To the extent this paragraph can be interpret(:d to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 81.-86. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 81 through 86. Accordingly, such allegations are denied. 87.-89. The allegations in paragraph 87 through 89 constitute conclusions oflaw to which no response is required. 90. Defendant incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 91.-98. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 91 through 98. Accordingly, such allegations are denied. 99.-103. The allegations in paragraphs 99 through 103 constitute conclusions of law to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or 7 information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 104. Defendant incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 105. The allegations in paragraph 105 constitute conclusions oflaw to which no response is required. 106. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 106. Accordingly, such allegations are denied. 107.-110. The allegations in paragraphs 107 through 110 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 111.-113. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs III through 113. Accordingly, such allegations are denied. 114. The allegations in paragraph 114 constitute Gonclusions oflaw to which no response is required. To the extent this paragraph can be interpreted to contain allegations of 8 fact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 115.-117. Denied. Defendant denies plaintiffs description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. 118. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 118. Accordingly, such allegations are denied. 119.-121. The allegations in paragraphs 119 through 121 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations offact, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. WHEREFORE, Defendant respectfully requests that this Court enter judgment in its favor and against Plaintiff, dismissing Plaintiff's claims and awarding Defendants whatever additional legal and equitable relief the Court deems appropriate. NEW MATTER I. Defendant incorporates by reference its responses to paragraphs I through 121 of the Plaintiff s Amended Complaint as if set forth in their entirety. 9 2. Defendant incorporates by reference the affirmative defenses and new matter of all other defendants currently named or named in the future as if set forth in their entirety. 3. Some or all of the averments of the Amended Complaint fail to state a cause of action upon which relief can be granted. 4. Some or all ofplaintifPs claims are barred by the applicable statutes of limitations and the doctrines of waiver, estoppel and laches. 5. Some or all of plaintiffs claims are barred by the doctrine of accord and satisfaction. 6. Some or all of plaintiffs claims are barred by his failure to mitigate damages. 7. At all times relevant hereto, Defendant acted reasonably, properly, with due care, and in accordance with all applicable laws and duties. 8. The hearing aid malfunctions, if any, plaintiff experienced are not covered by any warranty from Defendant. 9. The hearing aid malfunctions, if any, were due to unusual wear and tear or mistreatment of the hearing aid by plaintiff. 10. Defendant properly disclaimed any implied warranty of merchantability or implied warranty of fitness for a particular purpose associated with its hearing aid. II. Nothing Defendant did or failed to do proximately caused any injury to the plaintiff. 10 . 12. To the extent, ifat all, the plaintiff suffered the injuries alleged in the Amended Complaint, which is denied, those injuries may have been caused in whole or in part by the conduct, acts, omissions or negligence of the plaintiff or others over whom Defendant had no control, no responsibility to control, and no duty to control. 13. To the extent, if at all, the plaintiff suffered the injuries alleged in the Amended Complaint, which is denied, those injuries may have been caused in whole or in part by the intervening and superseding conduct of third parties for which Defendant is not liable. 14. Plaintiffs claims are barred because the plaintiff has suffered no harm, injury or damages. 15. Defendant reserves the right to amend the foregoing New Matter in order to include additional defenses, cross-claims, and/or counterclaims as may be discovered throughout the course of this litigation. Dated: January 5, 2006 Respectfully submitted, Attorneys for Defendant Siemens Hearing Instruments, Inc. II CERTIFICATE OF SERVICE I hereby certify that on this date I served the foregoing Answer and New Matter to Plaintiffs Amended Complaint upon counsel listed below via U.S. first class mail: Roderick F. Alberto, Certified Legal Intern Elder Law Clinic The Dickinson School of Law The Pennsylvania State Univ,ersity 150 South College Street Carlisle, P A 17013-2899 Nichole M. Walters, Esquire Supervising Attorney Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, P A 17013-2899 Scott L. Grenoble, Esquire Buzgon Davis Law Offices 525 South Eighth Street Lebanon, P A 17042 Dated: January 5, 2006 12 C) ( ,- 'y<: ....- Ui (/,? ':".' C) ~Tl ..., .'1......., 1;-1'"::: "." , .1 Kristin M. Hynd, Esquire Pa. Id. No. 85725 DECHERT LLP 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA 19103 (215) 994-2643 kristin.hynd@dechert.com Attorney for Defendant Siemens Hearing Instruments, Inc. QUENTIN COOPER CUMBERLAND COUNTY COURT OF COMMON PLEAS PLAINTIFF v. CIVIL ACTION - LAW NO. 05-3003 SIEMENS HEARING INSTRUMENTS, INC. AND GABLE ASSOCIATES HEARING AID SERVICES JURY TRIAL DEMANDED DEFENDANTS DEFENDANT SIEMENS HEARING INSTRUMENTS, INC.'S ANSWER TO NEW MATTER CROSS CLAIM OF DEFENDANT GABLE ASSOCIATES HEARING AID SERVICES Defendant Siemens Hearing Instruments, Inc. ("Siemens Hearing"), by and through its undersigned counsel, hereby responds to the New Matter Cross Claim Pursuant to Pennsylvania Rule of Civil Procedure 2252( d) of Defendant Gable Associates Hearing Aid Services: 135. Siemens Hearing hereby incorporates by re~erence its Answer And New Matter To Plaintiffs Amended Complaint, filed on January 5, 2006, as if set forth herein in its entirety. 136.-137. Denied. The averments in paragraphs 136 and 137 are legal conclusions that are deemed denied and to which no responsive pleading is required. To the I extent that a response is required, Siemens Hearing denies that it liable to Plaintiff and denies that it is liable to Defendant Gable Associates Hearing Aid Service:s. WHEREFORE, Siemens Hearing respectfully requests that this Honorable Court enter judgment in its favor and award it costs and expenses, including attorneys' fees, incurred in this matter, and grant it such other relief as the Court may deem just and proper. Dated: January 5,2006 Respectfully s..ubmittev / Attorneys for Defendlmt Siemens Hearing Instruments, Inc. 2 . CERTIFICATE OF SERVICE I hereby certify that on this date I served the foregoing Answer To New Matter Cross Claim of Defendant Gable Associates Hearing Aid Services upon counsel listed below via U.S. first class mail: Roderick F. Alberto, Certified Legal Intern Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, P A 17013-2899 Nichole M. Walters, Esquire Supervising Attorney Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, P A 17013-2899 Scott L. Grenoble, Esquire Buzgon Davis Law Offices 525 South Eighth Street Lebanon, P A 17042 Dated: January 5, 2006 3 J ','./1 ('-) c:-:'# , c/. '''''<(' ~;~ .:.:.:} '-:;-', ,.~) "-1'1 (-,~ '. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED ANSWER TO NEW MATTER AND NEW MATTER PURSUANT TO P A.R.C.P. 2252 (d) OF GABLE ASSOCIATES HEARING AID SERVICES AND NOW, comes the Plaintiff, Quentin Cooper, by and through his attorneys, the Elder Law Clinic of the Penn State Dickinson School of Law, and in support of its Answer to New Matter of Gable Associates Hearing Aid Services avers as follows: ANSWER TO NEW MATTER 122. Denied. It is specifically denied that the Plaintiff may have abused or misused the product. By way of further response, strict proof thereof is demanded at the time of trial if deemed relevant. 123. Denied. It is specifically denied that the Plaintiff may have acted negligently in the care and use of the hearing aid. By way of further response, strict proof thereof is demanded at the time of trial if deemed relevant. 124. Denied. It is specifically denied that the Plaintiffs difficulty in using the aforesaid hearing aid was in any part due to an excessive earwax condition. By way of further response, strict proof thereof is demanded at the time of trial if deemed relevant. 125. Denied. The averments in paragraph 125 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 126. Denied. The averments in paragraph 126 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 127. Denied. The averments in paragraph 127 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 128. Denied. The averments in paragraph 128 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 129. Denied. The averments in paragraph 129 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 130. Denied. The averments in paragraph 130 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 131. Denied. The averments in paragraph 131 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 2 132. Denied. The averments in paragraph 132 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 133. Denied. The averments in paragraph 133 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 134. Denied. The averments in paragraph 134 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. ANSWER TO NEW MATTER PURSUANT TO PAR.C.P. 2252 (d) 135. Paragraph 135 of the Defendant's New Matter Pursuant to PA.R.C.P. 2252 (d) contains no averments to which a response is necessary. To the extent that a response may be required, the Plaintiff incorporates paragraphs 122 to 134 of its Answer to New Matter by reference as if set forth herein at length. 136. Denied. The averments in paragraph 136 of the Defendant's New Matter Pursuant to PAR.C.P. 2252 (d) constitute conclusions oflaw to which no response is required. If a response is required, the averments are denied. 137. Denied. Paragraph 137 of the Defendant's New Matter Pursuant to PAR.C.P. 2252 (d) contains no averments to which a response is necessary. To the extent that a response may be required, the averments are denied. 3 WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against the Defendants in the amount demanded in its Complaint. Respectfully submitted, ~~,~ Douglas R. Roeder Supreme Court No. 80016 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College St. Carlisle, P A 17013-2899 Phone: (717) 240-5152 Dated: /-/7-06 4 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on January 17, 2006, I served the foregoing Answer to New Matter of Gable Associates Hearing Aid Services, by placing true and correct copies of the same via First Class Mail, postage prepaid, addressed as follows: Gable Associates Hearing Aid Services c/o Scott L. Grenoble, Esquire Buzgon Davis Law Office 525 South Eighth Street P.O. Box 494000 Lebanon, P A 17042-0049 Siemens Hearing Instruments Inc. c/o Kristin M. Hynd, Esquire Law Offices of Dechert LLP 1717 Arch Street Bell Atlantic Tower Philadelphia, PA 19103 Dated: I .- I r; -6t ~~. rLL- Douglas R. Roeder Supervising Attorney Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College St. Carlisle, PA 17013-2899 (717) 240-5152 5 f'-J (~ ~._, __I \~.? ()~ ---1 - '\ -,. ,1l :1 .. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED PRAECIPE TO ATTACH CLIENT VERIFICATION TO THE PROTHONOTARY: Please attach the following client verification to the Answer to New Matter of Gable Associates Hearing Aid Services filed on January 17, 2006. Respecfully submitted, mClffi ~J. .('lYl~ Roxana 1. Correa Certified Legal Intern ~dL/uJt~ ark W. Allshouse ~~reme Court No. 78014 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, P A 17013-2899 (717) 240-5152 Dated: January 26,2006 . Verification I verify that the statements made in this Answer to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 94904, relating to unsworn falsification to authorities. Date: January 25, 2006 ~~ ~ Quentin Cooper . .. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on January 26, 2006, I served the foregoing Answer to New Matter of Siemens Hearing Instruments, Inc., by placing true and correct copies of the same via First Class Mail, postage prepaid, addressed as follows: Gable Associates Hearing Aid Services c/o Scott L. Grenoble, Esquire Buzgon Davis Law Office 525 South Eighth Street P.O. Box 494000 Lebanon, P A 17042-0049 Siemens Hearing Instruments Inc. c/o Kristin M. Hynd, Esquire Law Offices of Dechert LLP 1717 Arch Street Bell Atlantic Tower Philadelphia, PA 19103 By: ~~Q Y\D. i"l. LG~ Roxana 1. Correa Certified Legal Intern Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013 (717) 240-5152 Dated: January 26, 2006 ',1 r,,-:' IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED ANSWER TO NEW MATTER OF SIEMENS HEARING INSTRUMENTS. INC. AND NOW, comes the Plaintiff, Quentin Cooper, by and through his attorneys, the Elder Law Clinic of the Penn State Dickinson School of Law, and in support of its Answer to New Matter of Siemens Hearing Instruments, Inc. avers as follows: ANSWER TO NEW MATTER 1. Denied. Paragraph I of the Defendant's New Matter contains no averments to which a response is necessary. To the extent that a response may be required, the averments are denied. 2. Denied. Paragraph 2 of the Defendant's New Matter contains no averments to which a response is necessary. To the extent that a response may be required, the averments are denied. 3. Denied. The averments in paragraph 3 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 4. Denied. The averments in paragraph 4 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 5. Denied. The averments in paragraph 5 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 6. Denied. The averments in paragraph 6 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 7. Denied. The averments in paragraph 7 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 8. Denied. The averments in paragraph 8 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 9. Denied. It is specifically denied that the hearing aid malfunctions were due to unusual wear and tear or mistreatment of the hearing aid by the Plaintiff. By way of further response, strict proof thereof is demanded at the time of trial if deemed relevant. 10. Denied. The averments in paragraph 10 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 2 II. Denied. The averments in paragraph II of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 12. Denied. The averments in paragraph 12 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 13. Denied. The averments in paragraph 13 of the Defendant's New Matter constitute conclusions of law to which no response is required. If a response is required, the averments are denied. 14. Denied. It is specifically denied that the Plaintiffs claims are barred because the Plaintiff has suffered no harm, injury or damages. Plaintiffs Complaint has alleged that Plaintiff suffered harm, injury and damages. 15. Denied. Paragraph 15 of the Defendant's New Matter contains no averments to which a response is necessary. To the extent that a response may be required, any amendment to Defendant Siemens Hearing Instruments, Inc.'s New Matter shall be done pursuant to the Pennsylvania Rules of Civil Procedure. 3 WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against the Defendants in the amount demanded in its Complaint. Respectfully submitted, ~Or\{XJ..Cou~ Roxana 1. Correa Certified Legal Intern M rk W. Allshouse S reme Court No.7 014 El er Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 Dated: January 26, 2006 4 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on January 26, 2006, I served the foregoing Answer to New Matter of Siemens Hearing Instruments, Inc., by placing true and correct copies of the same via First Class Mail, postage prepaid, addressed as follows: Gable Associates Hearing Aid Services c/o Scott L. Grenoble, Esquire Buzgon Davis Law Office 525 South Eighth Street P.O. Box 494000 Lebanon, PA 17042-0049 Siemens Hearing Instruments Inc. c/o Kristin M. Hynd, Esquire Law Offices of Dechert LLP 1717 Arch Street Bell Atlantic Tower Philadelphia, PA 19103 By: J\~ a i\Cl.. ~. C;aJl.,U 0- Roxana 1. Correa Certified Legal Intern Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, P A 17013 (717) 240-5152 Dated: January 26,2006 5 Verification I verify that the statements made in this Answer to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 94904, relating to unsworn falsification to authorities. Date: January 25,2006 d~.~ Quentin Cooper . ) i ":,'~ .-\ -r ".) Quentin Cooper Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants NO. 05-3003 PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Andrew J. Petsu, Jr., Certified Legal Intern, and Mark W. Allshouse, Esq., of Penn State Dickinson School of Law, Elder Law and Consumer Protection Clinic, counsel for the plaintiff in the above action, respectfully represents that: I. The above-captioned action is at issue. 2. The claim of plaintiff in the action is $ 6080 together with treble damages and attorney fees as permitted by 73 Pa. C.S.A. ~ 201-9.2, costs of suit, and any other remedy deemed just and appropriate. 3. The counterclaim of the defendant in the action is NONE. The following attorneys are interested in the case as counselor are otherwise disqualified to sit as arbitrators: Scott L. Grenoble, Esq. ofBuzgon Davis Law Office, Lebanon, Pennsvlvania and Virl!:inia Dorsev, Esq. of Law Offices of Dechert LLP, Philadelphia. Pennsvlvania WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, Dated: ~51oZt I I ~~e Andrew J. Petsu, Jr. Certified Legal Intern tJ. k W. Allshouse, Es . tty. ill # 78014 e Elder Law and Consumer Protection Clinic The Dickinson School of Law of The Pennsylvania State University 45 N. Pitt St. Carlisle, P A 17013 (717) 240-5152 ORDER OF COURT AND NOW, this _day Qf ,2006, in cQnsideratiQn of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By the Court, .fQ. """- ~ o o ~ ~ ~ ~ ~ -u & w ~ ~ f) -4 p ~ Jl D ~ L. ::;:l . ~--;:; . it ~--, ... .. i. ".'." C', --I - ,. C....;, '... :~~". Quentin Cooper Plaintiff IN THE CQURT QF CQMMQN PLEAS OF CUMBERLAND CQUNTY, PENNSYLVANIA v. Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants NO. 05-3003 PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Andrew J. Petsu, Jr., Certified Legal Intern, and Mark W. Allshouse, Esq., of Penn State Dickinson School of Law, Elder Law and Consumer Protection Clinic, counsel for the plaintiff in the above action, respectfully represents that: I. The above-captioned action is at issue. 2. The claim of plaintiff in the action is $ 6080 together with treble damages and attorney fees as permitted by 73 Pa. C.S.A. ~ 201-9.2, costs of suit, and any other remedy deemed just and appropriate. 3. The counterclaim of the defendant in the action is NONE. The fOllowing attorneys are interested in the case as counselor are otherwise disqualified to sit as arbitrators: Scott L. Grenoble. Esq. ofBuz!!on Davis Law Office. Lebanon. Pennsvlvania and Vir!!inia Dorsev. ESQ. of Law Offices of Dechert LLP. Philadelphia. Pennsvlvania WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, Dated: 7M5/tJ!t / / _~~e. Andrew J. Petsu, Jr. Certified Legal Intern f), W. Allshouse, Es . tty. ID # 78014 e Elder Law and Consumer Protection Clinic The Dickinson School of Law of The Pennsylvania State University 45 N. Pitt St. Carlisle, P A 17013 (717)240-5152 .ak ORDER QF COURT ~D NO , this. I day of Q ~conSideration of the fore oing petition, . C . R Esq., and Ii ., and ., are appomted arbitr rs in the above captioned action (or actions) as praye for. "'7.nl '):'1 h,..; ~t1> -C9. r'-_':l ~ <.";::::; ..... . . p <.;:l.... ....{ ~ ~ :L: -r"', jl ;n<--~ ~ 0 -- . '.~\::I- ;'" (} (J "- ~ ~ -- -- ~ ...... - .. \) ..... ,'. ...... , ,:~' ~ (). -cJ 6- w ~ ~ f:) '" ~ "L/;,ln8 ~ I'~ ~I ':;ill :J ..JI ~. ..:~ Virginia W. Dorsey, Esquire Pa. Id. No. 93139 DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808 215-994-2251 QUENTIN COOPER, Plaintiff, vs. SIEMENS HEARING INSTRUMENTS, INC. AND GABLE ASSOCIATES HEARING AID SERVICES Defendants. Attorney for Defendant Siemens Hearing Instruments, Inc. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 05-3003 WITHDRAWAL AND ENTRY OF APPEARANCE WITHDRAWAL AND ENTRY OF APPEARANCE To the Prothonotary: Kindly withdraw the appearance of Kristin M. Hynd and enter the appearance of Virginia W. Dorsey on behalf of defendant Siemens Hearing Instruments, Inc. Respectfully submitted, ey, Esquire ~ ..~ CERTIFICATE OF SERVICE I, Virginia Dorsey, hereby certify that on August I, 2006, a true and correct copy of the foregoing Withdrawal and Entry of Appearance was served by United States mail, first class postage prepaid, on the following: Andrew J. Petsu, Jr., Certified Legal Intern Douglas R. Roeder, Esquire The Elder Law and Consumer Protection Clinic The Dickinson School of Law of Pennsylvania State University 45 North Pitt Street Carlisle, PA 17013 Scott L. Grenoble, Esquire Buzgon Davis Law Qffices 525 South Eighth Street Lebanon, PAl 7042 '~'E~Wre -2- r- ~ i i ~ ~, ~ i~ I .: c,.) :.:::0 ~ ig ::s c,.) ~ ., - N .J ,.) QUENTIN COOPER, CQURT OF COMMQN PLEAS CUMBERLANDCQUNTY Plaintiff, CIVIL ACTION - LAW NO. 05-3003 v. SIEMENS HEARING INSTRUMENTS, . CONSENT INC. and GABLE ASSOCIATES HEARING: AID SERVICES, . Defendants. CONSENT TQ AMENDED PLEADING Pursuant to Pennsylvania Rule of Civil Procedure 1033, the undersigned parties, through counsel, consent to allow Defendant Siemens Hearing Instrument, Inc. to amend its Answer to Plaintiff's Amended Complaint. cDrn~ ~, ~ ~ ' Q..Q.J).. /Z" Andrew J. Petsu, Jr., Certified Legal Intern Douglas R .Roeder, Esquire ~/1.-3-/I)J, Thrte . Y'\\7:>l~\' Date Counsei for Plaintiff Counsel for Defendant Gable Associates Hearing Aid Services APPROVED BY THE CQURT: Dated: ,J. Cndant Siemens Hearing NOTICE TO PLEAD To: Plaintiff and Defendant Gable Associates Hearing Aid Services You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from the date of service hereof or a judgment may be entered against you. Virginia W. Dorsey, Esquire PA ill # 93139 DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 (215) 994-2251 virginia.dorsey@dechert.com Attorney for Defendant Siemens Hearing Instruments, Inc. QUENTIN COOPER COURT OF COMMON PLEAS CUMBERLAND COUNTY PLAINTIFF v. CNIL ACTION - LAW NO. 05-3003 SIEMENS HEARING INSTRUMENTS, INC. AND GABLE ASSOCIATES HEARING AID SERVICES JURY TRIAL DEMANDED DEFENDANTS AMENDED ANSWER AND NEW MATTER OF DEFENDANT SIEMENS HEARING INSTRUMENTS, INC. TO PLAINTIFF'S AMENDED COMPLAINT Defendant Siemens Hearing Instruments, Inc. ("Siemens"), by and through its undersigned counsel, hereby responds to Plaintiff's Amended Complaint with the following Amended Answer and New Matterl: Pursuant to PA. R. CIV. P. 1033, Siemens has obtained consent of the adverse parties to file this Amended Answer and New Matter. Said consent has been filed separately with the Court and is also attached hereto as Exhibit A. 2 ANSWER I. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph I. Accordingly, such allegations are denied. 2. Denied. Siemens Incorporated is not a defendant in this case. 3. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 3. Accordingly, such allegations are denied. 4. The allegations in paragraph 4 constitute conclusions oflaw to which no response is required. 5. -8. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 5 through 8. Accordingly, such allegations are denied. 9. Denied. Siemens denies that a true and correct copy of a purchase contract, or any document for that matter, is attached as Exhibit A to the Amended Complaint. As to the remaining allegations of paragraph 9, Siemens is without knowledge or information sufficient to form a belief as to the truth of those allegations. Accordingly, such allegations are denied. 10. Denied. Siemens denies Plaintiff s description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. Siemens further denies that a true and correct copy of its General Information For Hearing Aid Users brochure, or any document for that matter, is attached as Exhibit B to the Amended Complaint. 3 11. -18. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 11 through 18. Accordingly, such allegations are denied. 19. Denied. Siemens denies that a true and correct copy of any receipt for a warranty, or any document for that matter, is attached as Exhibit C to the Amended Complaint. As to the remaining allegations of paragraph 19, Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations. Accordingly, such allegations are denied. 20. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 20. Accordingly, such allegations are denied. 21. Denied. Siemens denies that a true and correct copy of any receipt for a warranty, or any document for that matter, is attached as Exhibit D to the Amended Complaint. As to the remaining allegations of paragraph 21, Siemens is without knowledge or information sufficient to form a belief as to the truth of those allegations. Accordingly, such allegations are denied. 21. -27. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 21 through 27. Accordingly, such allegations are denied. Count I: Breach of EXDress Warrantv of Merchantabilitv 28. Siemens incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 29.-31. Denied. Siemens denies Plaintiff's description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. 32. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 32. Accordingly, such allegations are denied. 33. The allegations in paragraph 33 constitute conclusions oflaw to which no response is required. To the extent this paragraph can be interpreted to contain allegations of fact, after reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 34.-39. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 34 through 39. Accordingly, such allegations are denied. 40.-42. The allegations in paragraph 40 through 42 constitute conclusions oflaw to which no response is required. Count II: Breach of Implied Warrantv of Merchantabilitv 43. Siemens incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 44.-51. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 44 through 51. Accordingly, such allegations are denied. 4 52.-56. The allegations in paragraphs 52 through 56 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. Count III: Pennsvlvania Unfair Trade Practices and Consumer Protection Law 57. Siemens incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 58. The allegations in paragraph 58 constitute conclusions oflaw to which no response is required. 59. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 59. Accordingly, such allegations are denied. 60.-63. The allegations in paragraphs 60 through 63 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 64.-66. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 64 through 66. Accordingly, such allegations are denied. 5 67. The allegations in paragraph 67 constitute conclusions oflaw to which no response is required. To the extent this paragraph can be interpreted to contain allegations of fact, after reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 68.-70. Denied. Siemens denies Plaintiff's description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. 71. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 71. Accordingly, such allegations are denied. 72.-74. The allegations in paragraphs 72 through 74 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. Count IV: Breach of Ex Dress Warranty of Merchantabilltv 75. Siemens incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 76.-78. Denied. Siemens denies Plaintiff's description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. 6 79. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 79. Accordingly, such allegations are denied. 80. The allegations in paragraph 80 constitute conclusions ofIaw to which no response is required. To the extent this paragraph can be interpreted to contain allegations of fact, after reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 81.-86. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 81 through 86. Accordingly, such allegations are denied. 87.-89. The allegations in paragraph 87 through 89 constitute conclusions ofIaw to which no response is required. Count V: Breach of Implied Warrantv of Merchantabilitv 90. Siemens incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 91.-98. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 91 through 98. Accordingly, such allegations are denied. 99.-103. The allegations in paragraphs 99 through 103 constitute conclusions of law to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Siemens is without knowledge or 7 information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. Count VI: Pennsvlvania Unfair Trade Practices and Consumer Protection Law 104. Siemens incorporates herein all other paragraphs of this Answer and New Matter as though fully set forth. 105. The allegations in paragraph 105 constitute conclusions oflaw to which no response is required. 106. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 106. Accordingly, such allegations are denied. 107.-110. The allegations in paragraphs 107 through 110 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 111.-113. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 111 through 113. Accordingly, such allegations are denied. 114. The allegations in paragraph 114 constitute conclusions of law to which no response is required. To the extent this paragraph can be interpreted to contain allegations of fact, after reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. 8 115.-117. Denied. Siemens denies Plaintiffs description of its General Information For Hearing Aid Users brochure and avers to the contrary that it is a writing which speaks for itself. 118. After reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 118. Accordingly, such allegations are denied. 119.-121. The allegations in paragraphs 119 through 121 constitute conclusions oflaw to which no response is required. To the extent these paragraphs can be interpreted to contain allegations of fact, after reasonable investigation, Siemens is without knowledge or information sufficient to form a belief as to the truth of these allegations. Accordingly, such allegations are denied. WHEREFORE, Siemens respectfully requests that this Court enter judgment in its favor and against Plaintiff, dismissing Plaintiffs claims and awarding Siemens whatever additional legal and equitable relief the Court deems appropriate. NEW MATTER 1. Siemens incorporates by reference its responses to paragraphs 1 through 121 of the Plaintiffs Amended Complaint as if set forth in their entirety. 2. Siemens incorporates by reference the affirmative defenses and new matter of all other defendants currently named or named in the future as if set forth in their entirety. 3. Some or all of the averments of the Amended Complaint fail to state a cause of action upon which relief can be granted. 9 4. Some or all of Plaintiff's claims are barred by the applicable statutes of limitations and the doctrines of waiver, estoppel and laches. 5. Some or all of Plaintiff's claims are barred by the doctrine of accord and satisfaction. 6. Some or all of Plaintiff's claims are barred by his failure to mitigate damages. 7. At all times relevant hereto, Siemens acted reasonably, properly, with due care, and in accordance with all applicable laws and duties. 8. The hearing aid malfunctions, if any, Plaintiff experienced are not covered by any warranty from Siemens. 9. The hearing aid malfunctions, if any, were due to unusual wear and tear or mistreatment of the hearing aid by Plaintiff. 10. Siemens properly disclaimed any implied warranty of merchantability or implied warranty of fitness for a particular purpose associated with its hearing aid. I I. Nothing Siemens did or failed to do proximately caused any injury to the Plaintiff. 12. To the extent, if at all, the Plaintiff suffered the injuries alleged in the Amended Complaint, which is denied, those injuries may have been caused in whole or in part by the conduct, acts, omissions or negligence of the Plaintiff or others over whom Siemens had no control, no responsibility to control, and no duty to control. 13. To the extent, if at all, the plaintiff suffered the injuries alleged in the Amended Complaint, which is denied, those injuries may have been caused in whole or in part by the intervening and superseding conduct of third parties for which Siemens is not liable. 10 14. Plaintiff's claims are barred because the plaintiff has suffered no harm, injury or damages. 15. Siemens reserves the right to amend the foregoing New Matter in order to include additional defenses, cross-claims, and/or counterclaims as may be discovered throughout the course of this litigation. ADDITIONAL NEW MATTER ASSERTED PURSUANT TO PA. R. eN. P. 2252ld) 1. Siemens incorporates by reference the averments of its Answer (paragraphs 1 through 121) and its first New Matter (paragraphs 1 through 15) above as ifset forth in their entirety. 138. If Plaintiff sustained any damages as is alleged in his Complaint, which is hereby specifically denied, then Defendant Gable Associates Hearing Aid Services ("Gable") is alone liable or liable over to Siemens or jointly or severally liable for said damages, any liability of Siemens being hereby expressly denied. 139. Siemens hereby crossclaims against Gable to protect its right ofindemnity and contribution, and in the event that it is judicially determined that Siemens is jointly or severally liable to Plaintiff, then Gable is liable over to Siemens, the existence of any liability on the part of Siemens being hereby expressly denied. WHEREFORE, Siemens avers that it is not liable to Plaintiff in the within cause of action and requests your Honorable Court to dismiss the Complaint filed against it; AND IN THE ALTERNATIVE, avers that if Plaintiff is entitled to recover upon his Complaint, then Gable is solely liable to Plaintiff; and further avers that if it should be found that Siemens is in 11 any way liable to Plaintiff, then Gable is jointly and/or severally liable with Siemens or liable over to Siemens. y submitted, Attorney for Defendant Siemens Hearing Instruments, Inc. 12 , ~ I , ) fSd\) b; t It QUENTIN CQOPER, Plaintiff, v. COURT OF COMMQN PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 05-3003 SIEMENS HEARING INSTRUMENTS, . CQNSENT INC. and GABLE ASSOCIATES HEARING: AID SERVICES, . Defendants. CONSENT TQ AMENDED PLEADING Pursuant to Pennsylvania Rule of Civil Procedure 1033, the undersigned parties, through counsel, consent to allow Defendant Siemens Hearing Instrument, Inc. to amend its Answer to Plaintiff's Amended Complaint. ~~ (i., ~ ~ ~ Q(U;,., L'~ Andrew 1. Petsu, Jr., Certified Legal Intern Douglas R .Roeder, Esquire g.-!~?>/tJJ, Daie . Counsei for Plaintiff Dated: Y'\\~\~~ Date Counsel for Defendant Gable Associates Hearing Aid Services APPROVED BY THE COURT: , J. CERTIFICATE OF SERVICE I, Amy K. McNally, hereby certify that on August 28, 2006, a true and correct copy of the foregoing Consent to Amended Pleading was served by United States mail, first class postage prepaid, on the following: Andrew J. Petsu, Jr., Certified Legal Intern Douglas R. Roeder, Esquire The Elder Law and Consumer Protection Clinic The Dickinson School of Law of Penn State University 45 North Pitt Street Carlisle, PA 17013 Scott L. Grenoble, Esquire Buzgon Davis Law Offices 525 South Eighth Street Lebanon, P A 17042 L~ "11IC\~i L. Amy K. M 1y. '1-- , , VERIFICATION I, Ric.ki Klein, am the National Customer Care Manager for Siemens Hearing Instruments, Inc. and am authorized to make this verification on its behalf. I hereby verify that the facts set forth in the foregoing Amended Answer and New Matter are true and correct to the best of my knowledge, information and/or belief. I understand that this verification is made subject to the penalties of 18 Pa. C.SA ~ 49(l9 relating to unsworn falsifications to authorities. Dated: -i 1 0 ~ ! CERTIFICATE OF SERVICE I, Amy K. McNally, hereby certify that on August 28, 2006, a true and correct copy of the foregoing Amended Answer and New Matter was served by United States mail, first class postage prepaid, on the following: Andrew J. Petsu, Jr., Certified Legal Intern Douglas R. Roeder, Esquire The Elder Law and Consumer Protection Clinic The Dickinson School of Law of Penn State University 45 North Pitt Street Carlisle, P A 17013 Scott L. Grenoble, Esquire Buzgon Davis Law Offices 525 South Eighth Street Lebanon, PA 17042 ,~.~~L, Amy K. ally - r p ....., 0 = ;;;:~) -n < ",., .n.... .-i 2~: :r rn :!J c') ,.. (.oJ -nrf1 :::t'JV C) i.. .\(..l -0 ;f:'i .~:!,.; C_) :;: l~;;;~ c: (..,) ~~~, ~> =< c' "J:J a:> :..:: hmn hh'/,ahk Hearing Ai,f,Rcply j(> Cro,\rhims of Stemem.doe .9/12'064:-15 I'M BUZGON DAVIS LAW OFFICES Scott L. Grenoble, Esquire Attorney J.D. #72808 525 South Eighth Street Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Fax: (717) 274-1752 E-Mail: sgrenoble@buzgondavis.com Attorneys for Attorneys for Defendant Gable Associates Hearing Aid Services IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY QUENTIN COOPER, Plaintiff NO. 05-3003 Vs. CIVIL ACTION - LA W SIEMENS HEARING INSTRUMENTS, INC., and GABLE ASSOCIATES HEARING AID SERVICES, JURY TRIAL DEMANDED Defendants REPLY OF DEFENDANT, GABLE ASSOCIATES HEARING AID SERVICES, TO NEW MATTER PURSUANT TO PA.R.C.P. 2252(d) OF SIEMENS HEARING INSTRUMENTS, INC. AND NOW, comes the Defendant, Gable Associates Hearing Aid Services, by its attorneys, Buzgon Davis Law Offices, and files this Reply to the Amended New Matter of Siemens Hearing Instruments, Inc., respectfully averring as follows .. . IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY QUENTIN COOPER, Plaintiff NO. 05-3003 vs. CIVIL ACTION - LAW SIEMENS HEARING INSTRUMENTS, INC., and GABLE ASSOCIATES HEARING AID SERVICES, JURY TRIAL DEMANDED Defendants AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYL VANIA ) ) ss: COUNTY OF LEBANON ) I, JANELLE K. WORCESTER, an employee of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, LebanQn County, Pennsylvania, Attorneys for Gable Associates Hearing Aid Services, being duly sworn according to law, depose and say that on September 13, 2006, I mailed for filing in the Office of the Prothonotary of Cumberland County, Pennsylvania the original REPLY OF DEFENDANT, GABLE ASSOCIATES HEARING AID SERVICES, TO NEW MATTER PURSUANT TO PA.R.C.P. 2252(d) of SIEMENS HEARING INSTRUMENTS, INC., and that I mailed a true and correct copy by First Class mail to Andrew J. Petsu, Jr., Certified Legal Intern, and Douglas R. Roeder, Esquire, The Elder Law Clinic and Consumer Protection Clinic, The Dickinson School of Law of the Pennsylvania State University, 45 North Pitt Street, Carlisle, Pennsylvania, 17013, attorney fQr Plaintiff and Virginia Dorsey, Esquire, DECHERT LLP, Circa Centre, 2929 Arch Street, Philadelphia, Pennsylvania, 19104- 2808, attorney for Defendant, Siemens Hearing Instruments, Inc. Sworn to and subscribed before me this 13th day of September, AD., 2006. ~~ Yk\NEL . WORCESTER \"'~ "~ ''---, .......~"'<.- "'.. ..-.- Notarial Seal Ky.. Ellinger, NoIary Public City Lebanon, ~ebanon eounty My Commission Expires Mar. 10.2007 Member. Pennsylv;"n;a Association Of Notaries {,<;- .--' -r- j'; r;;' \'<t Cr'-t IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION -LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED ANSWER TO NEW MATTER OF SIEMENS HEARING INSTRUMENTS. INC. AND NOW, comes the Plaintiff, Quentin Cooper, by and through its attorneys, Douglas R. Roeder, Esq. and the Elder Law Clinic of the Penn State Dickinson SchQol of Law, and in support of its Answer to New Matter of Siemens Hearing Instruments, Inc. avers as follows: ANSWER TO NEW MATTER 138. Denied. The averments of paragraph 138 set forth cQnclusions oflaw to which no reSPQnse is required. AdditiQnally, paragraph 138 contains no averments tQ which a reSPQnse by Plaintiff is necessary. The averments of paragraph 138 are directed towards Defendant, Gable Associates Hearing Aid Services. To the extent that a response by Plaintiff may be required, such averments are specifically denied by Plaintiff. 139. Denied. The averments of paragraph 139 set forth conclusions oflaw to which no response is required. Additionally, paragraph 139 contains no averments to which a response by Plaintiff is necessary. The averments of .. paragraph 139 are directed towards Defendant, Gable Associates Hearing Aid Services. To the extent that a response by Plaintiff may be required, such averments are specifically denied by Plaintiff. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against the Defendants in the amount demanded in its Complaint. Respectfully submitted, ~Jfh~ Andrew 1. Petsu, Jr. Certified Legal Intern Dated: 9 -,J-.(') ~ () b Wl.~ Douglas R. Roeder, Esq. Elder Law Clinic & Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 45 N. Pitt St. Carlisle, Pennsylvania 17013 Phone: (717) 240-5152 2 "l I . ... IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on September 2D ,2006, I served the foregoing Answer to New Matter of Siemens Hearing Instruments, Inc., by placing true and correct copies Qf the same via First Class Mail, postage prepaid, addressed as fQllows: Gable Associates Hearing Aid Services c/o Scott L. Grenoble, Esquire Buzgon Davis Law Office 525 South Eighth Street P.O. Box 494000 Lebanon, P A 17042-0049 Siemens Hearing Instruments Inc. c/o Virginia W. Dorsey, Esquire Law Offices of Dechert LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 By: ~~L Andrew J. Petsu, Jr. Certified Legal Intern Elder Law & Consumer ProtectiQn Clinic The Dickinson School of Law The Pennsylvania State University 45 N. Pitt St. Carlisle, P A 17013 (717) 240-5152 Dated: ?f- W- 00 3 ~ ~ ~ c::. c::. c:::n "'OClJ en :r:n [Pm ,.,., ~;.!:.) -0 ~Fn Zt)-; N :nS? ~k~; 0 'r;:e:'J o( 1 ;::i 'F, ~o :> "5'1 ~o ::r :2:0 Pc - om - Z ;g :< N ::0 W -< QUENTIN COOPER, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. SIEMENS HEARING INSTRUMENTS, INC., AND GABLE ASSOCIATES HEARING AID SERVICES, DEFENDANTS 05-3003 CIVIL TERM ORDER OF COURT AND NOW, this ~ day of October, 2006, the appointment of C. Roy Weidner, Jr., Esquire, as chairman on the Board of Arbitrators in the above- captioned case, IS VACATED. Marlin R. McCaleb, Esquire, is appointed in his place. ~ c.\,O lp ~O \0 ~rlin R. McCaleb, Esquire Court Administrator :sal o r!) ..::T I t:; o ......r" c'::;J ("..;;-...:> c--J QUENTIN COOPER, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. SIEMENS HEARING INSTRUMENTS, INC., AND GABLE ASSOCIATES HEARING AID SERVICES, DEFENDANTS : 05-3003 CIVIL TERM ORDER OF COURT AND NOW, this 7' day of December, 2006, the appointment of a Board of Arbitrators in the above-captioned case, IS VACATED and Marlin R. McCaleb, Esquire, Chairman, shall be paid the sum of $50.00. Marlin R. McCaleb, Esquire. Court Administrator :sal ~ 1)~9 j:~~;~; ~: ,..;._~ .._L.. (;; t~) <..,C~ iJJD- :;:d 1.0 u-~ 5 N N - - ~ ;d ?: N U l_~.J Cl ....0 c:::.r c;:::: c.--l ./. \. QUENTIN COOPER, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. SIEMENS HEARING INSTRUMENTS, INC., AND GABLE ASSOCIATES HEARING AID SERVICES, DEFENDANTS : 05-3003 CIVIL TERM ORDER OF COURT AND NOW, this 7' day of December, 2006, the appointment of a Board of Arbitrators in the above-captioned case, IS VACATED and Marlin R. McCaleb, Esquire, Chairman, shall be paid the sum of $50.00. Marlin R. McCaleb, Esquire. Court Administrator :sal /1 ;-;,v- .'" I'J~ ~ \--- n it;~ .~~0 (~) (~~: ~{'1~C ';2 1.0 U-:C \-- U- o N N - - ~ ~ -j N U ld C::.1 ....0 c;::;:; c;:::: c.--l j)lL-0 )Jde~et- IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY Quentin Cooper Plaintiff NO. 05-3003 v. CIVIL ACTION - LAW Siemens Hearing Instruments, Inc. and Gable Associates Hearing Aid Services Defendants JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE ARBITRATION TO THE PROTHONOTARY: Please discontinue the above captioned matter, and mark the matter settled and discontinued. Respectfully Submitted, ~J~?? 4ek Andrew 1. Petsu Jr. Certified Legal Intern Douglas R. Roeder, Esq. Supervising Attorney, ID# 80016 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 45 N. Pitt St. Carlisle, PA 17013-2899 (717) 240-5152 Dated: December 20, 2006