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HomeMy WebLinkAbout05-3736 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara 1. Cooper, Plaintiff, v. K&M PLUMBING, INC. and SEARS ROEBUCK & COMPANY, Defendmts. CIVIL DIVISION - ARBITRATION No.: OS' - 3'731:, Ciu;(.. ~~ COMPLAINT Filed on behalf of Plaintiff Counsel of Record for this Party: Christopher P. Deegan, Esquire PA J.D. #85635 WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP Firm #594 Two Gateway Center 14th Floor Pittsburgh, PA 15222 (412) 281-4541 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara L. Cooper, CIVIL DIVISION - ARBITRATION No.: Plaintiff, v. K&M PLUMBING, INC. and SEARS ROEBUCK & COMPANY, Defendmts. NOTICE TO DEFEND 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 appearmce 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 claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street, Carlisle, PAl 70 13 Telephone: (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara L. Cooper, CIVIL DIVISION - ARBITRATION No.: OS - 31:3" c.;c.;J'l '-r~ Plaintiff, v. K&M PLUMBING, INC. and SEARS ROEBUCK & COMPANY, Defendants. COMPLAINT AND NOW comes plaintiff, American Bankers Insurmce Company of Florida as subrogee of Barbara L. Cooper, by md through its counsel, Christopher P. Deegan, Esquire and Weber Gallagher Simpson Stapleton Fires & Newby LLP, and files the following Complaint: 1. Plaintiff, American Bankers Insurmce Company of Florida as subrogee of Barbara L. Cooper is a corporation doing business within the Commonwealth of Pennsylvania at P.O. Box 740252, Atlanta, Georgia 30374. 2. Barbara L. Cooper is an individual residing at 16 Buttonwood Lane, Carlisle, Pennsylvania 17013. 3. Cooper is the holder of a policy of insurance which was issued by American. 4. At all times relevant hereto, the aforementioned policy was in effect and covered the property owned by Cooper at 16 Buttonwood Lane, Carlisle, Pennsylvania 17013. 5. Defendant, Sears Roebuck & Company is a corporation doing business within the Commonwealth of Pennsylvania at 333 Beverly Road, Hoffman Estates, Illinois 60179. 6. Defendant, K&M Plumbing, Inc. is a company doing business within the Commonwealth of Pennsylvania at 5722 Crickett Lane, Harrisburg, Pennsylvania 17112. 7. On or about July 19,2003, Cooper purchased a Kenmore Water Heater, model nwnber 153316355 and serial nwnber J021 12431 (hereinafter referred to as "the water heater"), from Sears. 8. The terms of the aforementioned purchase obligated Sears to install the water heater in Cooper's home at 16 Buttonwood Lane, Carlisle, Pennsylvania 17013. 9. K&M was subcontracted by Sears to install the water heater in Cooper's home. 10. On or about July 21, 2003, employees and/or agents and/or representatives of K&M came to Cooper's home and installed the water heater in a walk-in closet in a bedroom of Cooper's home. I I. On or about March 30, 2004, while investigating a spraying sound coming from the closet the water heater was located in, Cooper discovered that the plumbing supplying the water heater was leaking water into the closet. 12. As a result of this incident, Cooper's home sustained water and mold damage. COUNT I - NEGLIGENCE American Security Insurance Company as subroeee of Barbara L. Cooper Y. Sears Roebuck & Company 13. Plaintiff incorporates by reference paragraphs I through 12 as if set forth in full herein. 14. The careless, negligent and reckless conduct of Sears, by aIld through its employees, agents aIld/or representatives, in its position as principle contracting party for the installation of the water heater into Cooper's home was the direct and proximate cause of the damages suffered by Cooper and that conduct is more fully set forth below: a. In failing to properly install the water heater; b. In failing to ensure that the plumbing supplying the water heater with water was installed in a workmanlike marmer; c. In negligently supervising its employees, agents aIldlor representatives who acted or omitted to act as described above; d, In negligently training its employees, agents and/or representatives who acted or omitted to act as described above; e. In generally failing to install the water heater in a proper, safe, and workmanlike marmer; f. In failing to warn Cooper of the chance that the water heater may leak due to its negligent installation; g. In failing to install the pvc to copper fittings at the top of the water heater correctly; h, In negligently hiring aIld contracting with a negligent and careless water heater installer; and 1. In failing to provide Cooper with the standard of care owed to her under the existing circumstaIlces. WHEREFORE, plaintiff, AmericaIl Bankers Insurance Company of Florida as subrogee of Barbara 1. Cooper, demands judgment in its favor and against the defendaIlt, Sears Roebuck & Company, in the amount of$5,820.61, exclusive of interest aIld costs. COUNT II - BREACH OF CONTRACT American Security Insurance Company as subrol!ee of Barbara L. Cooper v. Sears Roebuck & Company 15. Plaintiff incorporates by reference paragraphs I through 14 as if set forth in full herein, 16. Sears did breach its contract with Cooper m general aIld m the following particulars: a. In failing to install the water heater in a workmanlike manner; b. In failing to install the plumbing supplying the water heater with water in a workmanlike manner; c. In failing to ensure that its subcontractor installed the water heater in a workmanlike manner; d. In failing to ensure that its subcontractor installed the plumbing supplying the water heater with water in a workmanlike maIlner; and c. In damaging Cooper's floor, carpet, and/or walls. WHEREFORE, plaintiff, American BaIlkers InsuraIlce Company of Florida as subrogee of Barbara 1. Cooper, demands judgment in its favor and against the defendant, Sears Roebuck & CompaIlY, in the amount of$5,820.6l, exclusive of interest and costs. COUNT III - NEGLIGENCE American Security Insurance Company as subroeee of Barbara L. Cooper v. K&M Plumbine 17. Plaintiff incorporates by reference paragraphs 1 through 16 as if set forth in full herein. 18. The careless, negligent aIld reckless conduct of K&M, by and through its employees, agents and/or representatives, was the direct and proximate cause of the damages suffered by Cooper and that conduct is more particularly set forth in below: a. In failing to properly install the water heater; b. In failing to ensure that the plumbing supplying the water heater with water was installed in a workmanlike manner; c. In negligently supervising its employees, agents aIld/or representatives who acted or omitted to act as described above; d. In negligently training its employees, agents and/or representatives who acted or omitted to act as described above; e. In generally failing to install the water heater in a proper, safe, aIld workmanlike manner; f. In failing to warn Cooper of the chance that the water heater may leak due to its negligent installation; g. In failing to install the pvc to copper fittings at the top of the water heater correctly; and h. In failing to provide Cooper with the staIldard of care owed to her under the existing circumstaIlces. WHEREFORE, plaintiff, American Bankers Insurance Company of Florida as subrogee of Barbara 1. Cooper, demands judgment in its favor and against the defendant, K&M Plumbing, in the amount of$5,820.61, exclusive of interest aIld costs. COUNT IV - BREACH OF CONTRACT American Security Insurance Company as subrol!ee of Barbara L. Cooper v. K&M Plumbinl! 19. Plaintiff incorporates by reference paragraphs I through 18 as if set forth in full herein. 20. K&M did breach its contract with Cooper 111 general aIld 111 the following particulars: a. In failing to install the water heater in a workmanlike manner; b. In failing to install the plumbing supplying the water heater with water in a workmaIllike manner; c. In damaging Cooper's floor, carpet, and/or walls. WHEREFORE, plaintiff, AmericaIl BaIlkers Insurance Company of Florida as subrogee of Barbara L. Cooper, demaIlds judgment in its favor aIld against the defendaIlt, K&M Plumbing, in the amount of $5,820.61, exclusive of interest aIld costs Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP Christopher P. eegaIl, Esqui e Counsel for Plaintiff VERIFIED STATEMENT I, Christopher P. Deegan, Esquire, being the attorney for plaintiff in the within action, am duly authorized to make this Verified Statement on its behalf, and make this Verified Statement due to the fact that plaintiffs Verified Statement cannot be obtained within the time limits necessary for filing this pleading, and I hereby verify that the statements set forth in the foregoing Complaint are true and correct to the best of my information and belief based upon knowledge obtained from plaintiff. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. S 4904, relating to unsworn falsifications to authorities. Dated: 1- /I-d.$" 0 -let 1- Ul l\l ~ n - trt -- -- C) \) ~ , ~ ~ , ~ - E --<- '2:':-; (A 8, 'J"' .--'. r~'..~ ~ :'~. :".'. ,r: \r'~) ~g:;; f~ '-'~,~\, {~~\ f-;"? ,'\ --:: ." L") ....<:~ cP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara L. Cooper, Plaintiff, v. K&M PLUMBING, INC. aIld SEARS ROEBUCK & COMPANY, Defendants. CIVIL DIVISION - ARBITRA nON No.: 05-3736 PROOF OF SERVICE - SEARS ROEBUCK & COMPANY Filed on behalf of Plaintiff Counsel of Record for this Party: Christopher P. DeegaIl, Esquire PA J.D. #85635 WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP Firm #594 Two Gateway Center 14th Floor Pittsburgh, PA 15222 (412) 281-4541 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara L. Cooper, CIVIL DIVISION - ARBITRATION No.: 05-3736 Plaintiff, v. K&M PLUMBING, INC. and SEARS ROEBUCK & COMPANY, Defendants. PROOF OF SERVICE I, Christopher P. DeegaIl, Esquire, counsel for plaintiff in the above-captioned case, hereby certify that a copy of the Complaint was served upon Sears Roebuck & Company by Certified Mail, Return Receipt Requested. A copy of the Return Receipt from such Certified Mailing, showing that the Complaint was delivered on August 2, 2005, is attached hereto as Exhibit "A". I also verify that the statements in this Proof of Service are true aIld correct. I understaIld that false statements herein are made subject to the penalties of 18 Pa. C.S.A.S 4904 relating to Unsworn Falsification to Authorities. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP Dated: R - ~-05 (, Christopher P. DeegaIl, Esq e Counsel for Plaintiff . ., .'t'. , . CampIele nema 1, 2. and 3. Also complete 110m 4 ij Restricted Delivery la desired. . _ your name and address on the reverse ..ttwt we can return the card to yOtJ. . _ this card to the back of mallplece~ or on the front ij apace pennlta. 1.__'0: ~ !it"f.e'-} &. 333~. ~ ' '~1I79 2. _ Number "...,., tram wMce J.hal PS Form 3811. FellN8Iy 2004 A ~.. 0 Agent X '7~.,...!( o Add_ B. Received bY(.Prtn~ C. ~e ~ D. I. deIlvety addrees dltIeront!tom _ '1 0 Yes If YES, enter deIlvery addl'8S8 below: 0 No 3. ServIce Type .. Certl1Ied Moll 0 Expr80ll MelI o Roglo!ered 0 Retum Receipt for M"",_ D_red Men D c,O,O. 4, _ DelIvery? (Extra FeflJ 0 Yes 7003 3110 0004 3901 7832 102M6-0ll:....1540 ~ -.nAocolpl EXHIBIT j~ ~ q, <;1 '5' --i 'i ~J f(\~ li~ :9,~ \ t:'/.C ~\ UJ l~~\ \4 -e. c4~ ~~ _ "":1'" ..p Sol .' ~ '" v:> ':;L, ~ ...i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara 1. Cooper, CIVIL DIVISION - ARBITRATION Case No.: 05-3736 Plaintiff, VS. K & M PLUMBING, INC. and SEARS ROEBUCK & COMPANY, PLEADING: DefendaIlts. PRAECIPE FOR APPEARANCE FILED ON BEHALF OF: Sears, Roebuck and Co., Defendant (incorrectly identified as SEARS ROEBUCK & COMPANY) COUNSEL OF RECORD: ROGER W. FOLEY, JR., ESQUIRE Pa.ID# 73936 ADAMS & FOLEY, 1.1.C. 800 Regis Avenue, Third Floor Pittsburgh, PA 15236 (412) 653-9540 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara 1. Cooper, Plaintiff, VS. K & M PLUMBING, INC. aIld SEARS ROEBUCK & COMPANY, Defendants. ) CIVIL DIVISION - ARBITRATION ) ) ) ) Case No: 05-3736 ) ) ) ) ) PRAECIPE FOR APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly enter the appearaIlce of the law firm of ADAMS & FOLEY, L.1.C. and ROGER W. FOLEY, JR., ESQUIRE on behalf of the Defendant, SEARS, ROEBUCK AND CO. (incorrectly identified as SEARS ROEBUCK & COMPANY) in the above-captioned matter. BY: Respectfully submitted, CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing PRAECIPE FOR APPEARANCE has been served on all counsel of record, by first class mail, postage pre- rd. paid, according to the Pennsylvania Rules of Civil Procedure, on the :l3 day of August, 2005. Christopher P. Deegan, Esquire WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP Two Gateway Center 14th Floor Pittsburgh, PA 15222 ADAMS & FOLEY, L.L.C. B . (') .--' (') = ~ =, ,1 cJ' :.:;:! '"\'~ \": - ~ -.-....." ,- p,~, -'- G' ,,~ ~1':1 .. C '[i'l) V' ~_'::-\C) -'"~ --, ' -::; (-;, -" c;y.n <1? / ?E ::c~ c:> 0:> "-4 T IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMP ANY OF FLORIDA as subrogee of Barbara L. Cooper, Plaintiff, VS. K & M PLUMBING, INC. aIld SEARS ROEBUCK & COMPANY, Defendants. Jury Trial Demanded TO: ALL PARTIES YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ATTACHED NEW MATTER AND NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEF AUL T JUDGMENT MA E :rERED AGAINS CIVIL DIVISION - ARBITRATION CASE NUMBER: 05-3736 PLEADING: ANSWER, NEW MATTER and NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) OF DEFENDANT SEARS, ROEBUCK AND CO. CODE AND CLASSIFICATION: FILED ON BEHALF OF: Sears, Roebuck aIld Co., DefendaIlt (incorrectly identified as SEARS ROEBUCK & COMPANY) COUNSEL OF RECORD: ROGER W. FOLEY, JR., ESQUIRE Pa.ID# 73936 ADAMS & FOLEY, L.L.c. 800 Regis Avenue, Third Floor Pittsburgh, P A 15236 (412) 653-9540 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA AMERICAN BANKERS INSURANCE COMP ANY OF FLORIDA as subrogee of Barbara L. Cooper, Plaintiff, VS. K & M PLUMBING, INC. aIld SEARS ROEBUCK & COMPANY, Defendants. ) CIVIL DIVISION - ARBITRA nON ) ) ) ) Case No: 05-3736 ) ) ) ) ) ANSWER, NEW MATTER AND NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) NOW COMES Defendant SEARS, ROEBUCK and CO., (incorrectly identified as "Sears Roebuck & Company") through its attorneys, Adams & Foley, L.L.C., by Roger W. Foley, Jr., Esquire, and files the following Answer, New Matter aIld New Matter Pursuant to Pa.R.C.P. 2252(d) wherein the following representations and averments are made: 1. The averments contained in Paragraph I of Plaintiff's complaint are denied in that, after reasonable investigation, Defendant Sears, Roebuck and Co. (hereinafter Defendant Sears) is without knowledge aIld/or information sufficient to form a belief as to the truth or falsity of said averments and therefore, strict proof thereof is demanded at the time of trial. 2. The averments contained in Paragraph 2 of Plaintiffs Complaint are denied in that, after reasonable investigation, Defendant Sears is without knowledge aIld/or information sufficient to form a belief as to the truth or falsity of said averments and therefore, strict proof thereof is demanded at the time of trial. 3. The averments contained in Paragraph 3 of Plaintiff's Complaint are denied in that, after reasonable investigation, Defendant Sears is without knowledge and/or information sufficient to form a belief as to the truth or falsity of said averments and therefore, strict proof thereof is demanded at the time of trial. Furthermore, the averments contained in Paragraph 3 of Plaintiffs Complaint reference a written document which speaks for itself. To the extent that Plaintiffs averments mischaracterize, misstate or contradict the terms and conditions of said document, said averments are specifically denied, and strict proof thereof is demanded at the time of trial. 4. The averments contained in Paragraph 4 of Plaintiff's Complaint are denied in that, after reasonable investigation, Defendant Sears is without knowledge and/or information sufficient to form a belief as to the truth or falsity of said averments and therefore, strict proof thereof is demanded at the time of trial. Furthermore, the averments contained in Paragraph 4 of Plaintiffs Complaint reference a written document which speaks for itself. To the extent that Plaintiffs averments mischaracterize, misstate or contradict the terms and conditions of said document, said averments are specifically denied, and strict proo f thereof is demanded at the time of trial. 5. The averments contained in Paragraph 5 of Plaintiffs Complaint are admitted in part and denied in part. It is admitted that Defendant Sears is a corporation. The remainder ofthe averments contained within Paragraph 5 of Plaintiffs Complaint are denied as stated. Defendant Sears is a New York corporation with a principal place of business in Hoffinan Estates, Illinois. 6. The averments contained in Paragraph 6 of Plaintiffs Complaint are denied in that, after reasonable investigation, Defendant Sears is without knowledge and/or information sufficient to form a belief as to the truth or falsity of said averments and therefore, strict proof thereof is demanded at the time of trial. 7, The averments contained in Paragraph 7 of Plaintiffs Complaint are denied in that, after reasonable investigation, Defendant Sears is without knowledge and/or information sufficient to form a belief as to the truth or falsity of said averments and therefore, strict proof thereof is demaIlded at the time of trial. 8. The averments contained in Paragraph 8 of Plaintiffs Complaint reference a written document which speaks for itself. To the extent that Plaintiffs averments mischaracterize, misstate or contradict the terms and conditions of said document, said averments are specifically denied, and strict proof thereof is demanded at the time of trial. 9. The averments contained in Paragraph 9 of Plaintiffs Complaint are denied in that, after reasonable investigation, Defendant Sears is without knowledge and/or information sufficient to form a belief as to the truth or falsity of said averments aIld therefore, strict proof thereof is demaIlded at the time oftrial. 10. The averments contained in Paragraph 10 of Plaintiffs Complaint are denied in that, after reasonable investigation, DefendaIlt Sears is without knowledge and/or information sufficient to form a belief as to the truth or falsity of said averments and therefore, strict proof thereof is demaIlded at the time of trial. 11. The averments contained in Paragraph 11 of Plaintiffs Complaint are denied in that, after reasonable investigation, Defendant Sears is without knowledge and/or information sufficient to form a belief as to the truth or falsity of said averments and therefore, strict proof thereof is demanded at the time of trial. 12. The averments contained in Paragraph 12 of Plaintiff's Complaint are denied in that, after reasonable investigation, DefendaIlt Sears is without knowledge and/or information sufficient to form a belief as to the truth or falsity of said averments and therefore, strict proof thereof is demanded at the time oftrial. COUNT I - NEGLIGENCE American Security Insurance Company as subrogee of Barbara L. Cooper v. Sears Roebuck & Company 13. The forgoing responses to Paragraphs I through 12 of Plaintiff's Complaint are incorporated by reference as if full y set forth at length herein. 14. The averments contained in Paragraph 14 of Plaintiff's Complaint state conclusions of law to which no responsive pleading is required. To the extent that a response is required, Paragraph 14 is denied pursuant to Pa.R.C.P, I029(e), and strict proof thereof is demanded at the time of trial. Wherefore, Defendant Sears denies that it is liable to Plaintiff in any manner or sum whatsoever and requests that this Honorable Court dismiss Plaintiffs Complaint in its entirety, and award Defendant Sears any and all such other relief as law and equity reqUire. COUNT II - BREACH OF CONTRACT American Security Insurance Company as subrol!.ee of Barbara L. Cooper v. Sears Roebuck & Company 15. The forgoing responses to Paragraphs I through 14 of Plaintiffs Complaint are incorporated by reference as if fully set forth at length herein. 16. The averments contained in Paragraph 16 ofPlaintif'f's Complaint state conclusions oflaw to which no responsive pleading is required. To the extent that a response is required, Paragraph 16 is denied pursuant to Pa.R.C.P. 1029(e), and strict proof thereof is demanded at the time oftrial. Wherefore, DefendaIlt Sears denies that it is liable to Plaintiff in any manner or sum whatsoever and requests that this Honorable Court dismiss Plaintiff's Complaint in its entirety, and award Defendant Sears any and all such other relief as law and equity require. COUNT III - NEGLIGENCE American Security Insurance Companv as subroe:ee of Barbara L. Cooper v. K&M Plumbine: 17. The forgoing responses to Paragraphs I through 16 of Plaintiff's Complaint are incorporated by reference as if fully set forth at length herein. 18. The averments contained in Paragraph 18 of Plaintiff's Complaint are directed to parties other than Defendant Sears and to which no responsive pleading is required. Wherefore, Defendant Sears denies that it is liable to Plaintiff in any manner or sum whatsoever and requests that this Honorable Court dismiss Plaintiff's Complaint in its entirety, and award Defendant Sears any and all such other relief as law and equity reqUlre. COUNT IV - BREACH OF CONTRACT American Security Insurance Companv as subro2ee of Barbara L. Cooper v. K&M Plumbin2 19. The forgoing responses to Paragraphs 1 through 18 of Plaintiffs Complaint are incorporated by reference as if fully set forth at length herein. 20. The averments contained in Paragraph 20 of Plaintiffs Complaint are directed to parties other than Defendant Sears and to which no responsive pleading is required. Wherefore, Defendant Sears denies that it is liable to Plaintiff in any manner or sum whatsoever and requests that this Honorable Court dismiss Plaintiffs Complaint in its entirety, and award Defendant Sears any and all such other relief as law and equity reqUIre. NEW MATTER 21. To the extent justified by the evidence developed in discovery or the testimony at the time oftrial, Plaintiffs claims are barred by the applicable statute of limitations. 22. To the extent justified by the evidence developed in discovery or the testimony at the time of trial, Plaintiff has failed to set forth a cause of action upon which relief can be granted. 23. To the extent justified by the evidence developed in discovery or the testimony at the time oftrial, Plaintiffs claims are barred by the statute of frauds, 24. To the extent that Plaintiff is attempting to introduce any oral statements to amend, modifY or otherwise alter any written agreements that are the subject matter of this litigation, the introduction of such statements is barred by the application of the parole evidence rule. 25. The alleged injuries and damages of which Plaintiff complains were proximately caused and/or proximately contributed to by parties, persons and/or entities other than Defendant Sears, including acts of nature. 26. Any injuries, damages and/or losses suffered by Plaintiff were proximately caused and/or contributed by a superseding and/or intervening cause or causes other than an act or omission on the part of Defendant Sears, and, accordingly, recovery or relief against Defendant Sears is barred. 27. At all times relevant to this matter, Defendant Sears exercised reasonable care under the circumstances. 28. To the extent that Plaintiff may prove that it has suffered any damages for which it may otherwise be entitled to recover, Plaintiffs recovery is either totally or partially barred by Plaintiff s failure to mitigate its damages. 29. Due to the generality of the allegations of Plaintiffs Complaint, Defendant Sears reserves the right to amend its Answer and New Matter if investigation, discovery and/or further information would warrant such amendments, and, further, to assert any applicable matters of law during the pendency of this action. 30. Defendant Sears incorporates the New Matters pled by all other defendants as though fully set forth at length herein, expect to the extent that they are inconsistent with the averments set forth in this Answer and New Matter. WHEREFORE, Defendant Sears demands judgment in its favor, together with any and all such other and further relief as law and equity require. NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) 31. Without admitting the allegations of Plaintiffs Complaint, which are denied as stated herein, Defendant Sears adopts said allegations as plead against K&M Plumbing, Inc. as though fully set forth at length herein. 32. In the event that Defendant Sears is held liable to Plaintiff, which liability is specifically denied, then K&M Plumbing, Inc. is jointly and/or severally liable or alone liable to Plaintiff and, therefore, liable to Defendant Sears for contribution and/or indemnification. 33. In the event that Defendant Sears is held liable to Plaintiff, which liability is specifically denied, then K&M Plumbing, Inc. is primarily liable to Plaintiff. As such, Defendant Sears is entitled to contribution and/or indemnification from said defendant. WHEREFORE, Defendant Sears demands judgment in its favor against K&M Plumbing, Inc. for indemnity and contribution. Respectfully submitted, ADAMS & FOLE , BY: STATE OF ILLINOIS ~ ~ ss: ~ COUNTY OF COOK April Hanes-Dowd, being duly sworn, states that she is The Corporate Secretary and an authorized agent for the purpose of executing this document on behalf of Sears, Roebuck and Co.; that while she does not have personal knowledge of all of the facts recited in the foregoing document, the statements and information made herein have been collected and made available to her by counsel and employees of Sears, Roebuck and Co.; that the information contained herein is true and correct to the best of her knowledge and belief and the document is, therefore, verified on behalf of Sears, Roebuck and Co. ~,~L Ap '1 Hanes-Dowd SUBSCRIBED AND SWORN T~efore me by the said April Hanes-Dowd on this (q~ day of ~ , 20~ to certify which witness my hand and seal of offlce. ~l{A CJ~J--- Nota y Public in a~ for the State of Illinois OFFICIAL SEAL DEBRA CHERRY NOTARY PUBUe. STATE OF ILLINOIS MY COMIIISSlON EXPIRES 9-'.2008 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing ANSWER, NEW MATTER aIld NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) OF DEFENDANT SEARS, ROEBUCK AND CO. has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the ~ day of September, 2005. Christopher P. Deegan, Esquire WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP Two Gateway Center 14th Floor Pittsburgh, PA 15222 BY: .-> c:::::. <:"":'.:.) cf> </) "" --0 ", N -;:1 _..~.~ -.'"'" ~ ~-n r"- -o\Ii .'f}"""" 0(:1 \;!~ ~ ..<.rr1 C) ;.~;.~ ~ r:~ .'!:- '-'" AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as Subrogee of Barbara L. Cooper Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA No. 05-3736 Civil Term v. K&M Plumbing, INC. AND SEARS ROEBUCK & COMPANY Defendants, ANSWER AND NOW comes the defendant, K&M Plumbing, through its owner, Mark D. Fuss herby respond with this answer to paragragh 14 of the plaintiff's complaint. A. Contractor did install the water heater properly. B. Contractor inspected the situation after the pipes leaked and found out the that the water heater was installed correctly. The leak came from natural corrusion of the pipes, which could have been caused by hardness of the water or by other minerals in the water. C. The incident happened 9 months after the installation. Surely if the installation was faulty the plumbing connections would leaked before 9 months. Respectfully Yours #1~//? L Mark D. Fuss K&M Plumbing (') r; ~'i" c. c ~; ..1_, =2 ....., = = en (/) 0l -0 N 0" o 71 -l I-n ,lip;: ,.,~, -;.1 "'~i '_A~i~ ~~~ "!':.- ':tj '< ~ ...... J::'" -.0 ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara 1. Cooper, Plaintiff, VS. K & M PLUMBING, INC. and SEARS ROEBUCK & COMPANY, Defendants. CIVIL DIVISION - ARBITRATION CASE NUMBER: 05-3736 PLEADING: NOTICE OF SERVICE OF ANSWER. NEW MATTER AND NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) OF DEFENDANT SEARS, ROEBUCK AND CO. CODE AND CLASSIFICATION: FILED ON BEHALF OF: Sears, Roebuck and Co., Defendant (incorrectly identified as SEARS ROEBUCK & COMPANY) COUNSEL OF RECORD: ROGER W. FOLEY, JR., ESQUIRE Pa.ID# 73936 ADAMS & FOLEY, L.L.C. 800 Regis Avenue, Third Floor Pittsburgh, PA 15236 (412) 653-9540 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara 1. Cooper, Plaintiff, VS. K & M PLUMBING, INC. and SEARS ROEBUCK & COMPANY, Defendants. ) CIVIL DIVISION - ARBITRATION ) ) ) ) Case No: 05-3736 ) ) ) ) ) NOTICE OF SERVICE OF ANSWER. NEW MATTER AND NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) OF DEFENDANT SEARS, ROEBUCK AND CO. The undersigned hereby certifies that the ANSWER, NEW MATTER AND NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) OF DEFENDANT SEARS, ROEBUCK AND CO. has been served on Mark Fuss, K & M Plumbing, 5722 Crickett Lane, Harrisburg, P A 17112, by first class mail, postage pre-paid, on the 22nd day of September 2005. BY: ADAMS & FOLEY, L.1.C. Certificate of Service The undersigned hereby certified that a true and correct copy of the foregoing NOTICE OF SERVICE OF ANSWER, NEW MATTER AND NEW MATTER PURSUANT TO Pa.R.C.P. 2252(d) OF DEFENDANT SEARS, ROEBUCK AND CO. has been served on all counsel of record as listed below, by first class mail, postage pre- paid, on the 22nd day of September, 2005. Christopher P. Deegan, Esquire Weber, Gallagher Simpson Stapleton Fires & Newby, LLP Two Gateway Center 14th Floor Pittsburgh, PAl 5222 Mark Fuss K & M Plumbing 5722 Crickett Lane Harrisburg, PAl 7112 ADAMS & FOLEY BY ~:; ~ C;:'~:l ~ ~-'""0 t!J'1 i"f\ ~ '~~ fi~ c-, t..;:; ~!l ~.~; -- 3. -.P IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara L. Cooper, CIVIL DIVISION - ARBITRATION No.: 05-3736 Plaintiff, v. K&M PLUMBING, INC. and SEARS ROEBUCK & COMPANY, Defendants. PLAINTIFF'S PRAECIPE FOR DEFAULT JUDGMENT PURSUANT TO Pa.R.C.P.I037(b) To the Prothonotary: Kindly enter judgment in favor of plaintiff American Bankers Insurance Company of Florida as subrogee of Barbara L. Cooper and against defendant K&M Plumbing, Inc. for failure to file an Answer or otherwise respond in the above-captioned action within twenty (20) days of the date of service of the Complaint, and assess plaintiff s damages against defendant in the amount of$5,820.61. I certify that a written notice of intention to file this praecipe was mailed to defendant after the default had occurred and at least ten (10) days before the date of the filing of this praecipe. A copy of this notice is attached. The undersigned verifies that the statements of fact in the Praecipe are true and correct and are made subject to the penalties of 18 Pa.C.S.A. S 4904 relating to unsworn falsifications to authorities. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & N ;WBY LLP Dated: 9/ ~o~of Jt~ Christopher P. Dee Counsel for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara L. Cooper, CIVIL DIVISION - ARBITRATION No.: 05-3736 Plaintiff, v. K&M PLUMBING, INC. and SEARS ROEBUCK & COMPANY, Defendants. TO: K&M Plumbing, Inc. 5722 Crickett Lane Harrisburg, P A 17112 Date of Notice: September 7, 2005 IMPORTANT NOTICE YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALL Y OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MA Y LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Dauphin County Lawyer Referral Service 231 N. Front Street Harrisburg, P A 17101 Telephone: (717) 232-7536 WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP Christopher P. eegan, Esquir Counsel for Plaintiff CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Plaintiff s Praecipe for Default Judgment Pursuant to Pa.R.C.P. 1037(b) was served upon the following fJ.... defendant by Certified U.S. Mail, postage prepaid, this 1. C day of September, 2005, to the following: K&M Plumbing, Inc. 5722 Crickett Lane Harrisburg, P A 17112 v'"""'- Christopher P. De an, Esquire Counsel for Plaintiff t 1- ~ ~ ~ F c- p \l -. ~ ~ -..{J (::J ~ J::.-,+-. ~ __ 0 () ~ ~ ..i-- ----.( '1: -tJ ()l o S ~ ~ c..f~ ..-\ en ::c. -1"i f~'\ [1""r ---u -00 t',') >~ '-( 0'" ' '1 (, -,' -: ~-~; ~ (.~,~~ ~.~ ~.::?1 <-? 'T_ "5::; o ::.:::. 0" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA as subrogee of Barbara L. Cooper, CIVIL DIVISION - ARBITRATION No.: 05-3736 Plaintiff, , v. K&M PLUMBING, INC. and SEARS ROEBUCK & COMPANY, Defendants. 236 NOTICE NOTICE IS GIVEN THAT A JUDGMENT IN THE ABOVE CAPTIONED MATTER HAS BEEN ENTERED AGAINST YOU. C~~ Curt Long " " ' Prothonotary IF YOU HAVE ANY QUESTIONS CONTACT: CONCERNING THE ABOVE, PLEASE ~ Christopher P. D gan, Esquire PA I.D. No.: 85635 WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP Two Gateway Center - Suite 1450 603 Stanwix Street Pittsburgh, P A 15222 (412) 281-4541 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03736 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND AMERICAN BANKERS INS CO OF FL VS K&M PLUMBING INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: K&M PLUMBING 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 On August 31st , 2005 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge 18.00 9.00 10.00 31.25 .37 68.62 08/31/2005 WEBER GALLAGHER so~answe~ ____//--==--,.-:-. <.-'-?___ .-" ..... /- -~ ~- -- ~ ....- .- R.' Thomas Kline - Sheriff of Cumberland County SIMPSON Sworn and subscribed to before me day of S-r ~~ ~f ?f~ / P~t . otary 7 this _ fCe - J-.-o U S In The Court of Common Pleas of Cumberland County, Pennsylvania American Bankers Insurance Company of Florida VS. K&M Plunbing Inc NO. 05-3736 civil Now, July 28. 2005 ,I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. .-df"'"r" ./ /#' r ~~4'~J Sheriff of Cum berland County, P A Affidavit of Service Now, ,20_, at o'clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this _ day of ,20_ COSTS SERVICE MILEAGE AFFIDAVIT $ $ @ffitt of tlt~ ~4~riff William T. Tully Solicitor Charles E. Sheaffer Chief Deputy Mary Jane Snyder Real Estate Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 1710 1 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania AMERICAN BANKERS INSURANCE COMPANY OF vs County of Dauphin K & M PLUMBING INC Sheriff's Return No. 1370-T - -2005 OTHER COUNTY NO. 05-3736 AND NOW:August 17, 2005 at 11:21AM served the within COMPLAINT upon K & M PLUMBING INC by personally handing to MARK FUSS 1 true attested copy(ies) of the original COMPLAINT and making known to him/her the contents thereof at 5722 CRICKETT LANE HBG, PA 17112-0000 Sworn and subscribed to So Answers, Jf~ before me this 17TH day of AUGUST, 2005 ~A/ Sheriff of Dauphin County, Pa. ~ !J'7J- By NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1,2006 Deputy Sheriff Sheriff's Costs:$31.25 PD 08/02/2005 RCPT NO 209273 WONG