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HomeMy WebLinkAbout05-3894IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, 440 Lincoln Street Worcester, Massachusetts 01653 v. D.L. HEIGES ELECTRICAL SERVICES, INC. 5 Montasere Court Dillsburg, Pennsylvania 17019 and LEWIS R. SUNKEL 21 Farm House Lane Camp Hill, Pennsylvania 17011 and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC 1830 South 19th Street Harrisburg, PA 17104 and COMFORT TECH, INC. 1010 Flowers Lane Marysville, PA 17053 CIVIL ACTION NO: 05. 3VII Ct,.1I NOTICE TO DEFEND NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of the Cumberland County Bar Association Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 Le ban demandado a usted en la torte. Si usted quiere defenderse de estas demandas expuestas en las pAginas siguientes, usted tier veinte (20) dial de plazo at partir de la fecha de la demands y Is notification. Hace fatta asentar una comparesencia esyrita o en persona o con on abogado y entregar a Is torte en forma escrita sus defensas a sus objeciones a las demandas en contra de so persona. Sea avisado clue si usted no se defiende, la torte tomarA medidas y puede eontinuar la demanda en contra suya sin previo aviso o notificacion. AdemAs, Is cone Futile decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u turns derechos improtantes Para usted. LLEVE ESTA DEMANDA A UN ABOGADO tMMED1ATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECC16N SE ENCUENTRA ESCRITA ABA)O PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Lawyer Referral Service of the Cumberland County Bar Association Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telefn 0:(717)249-3166 DOCS_PH 1767944vl IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MASSACHUSETTS BAY COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, 440 Lincoln Street Worcester. Massachusetts 01653 V. D.L. HEIGES ELECTRICAL SERVICES, INC. 5 Montasere Court Dillsburg, Pennsylvania 17019 and LEWIS R. SUNKEL 21 Farm House Lane Camp Hill, Pennsylvania 17011 and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC 1830 South 190' Street Harrisburg, PA 17104 and COMFORT TECH, INC. 1010 Flowers Lane Marysville, PA 17053 CIVIL ACTION NO: oS- 38'9y,v ti PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue a Writ of Summons in Civil Action in the above case. Writ of Summons shall be forwarded to Attorney X Sheriff WHITE AND WILLIAMS LLP It vk?"wi Heidi van Steenburgh, Esquire Attorneys for Plaintiff PA Identification # 83186 1800 One Liberty Place Philadelphia, PA 19103 215-864-7126 :+***+.r*•sta**+r+**:r*r*rt?+?.?,:.s?:rx*rr*s?*+ DOCS_PH 1771185vl IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, 440 Lincoln Street Worcester, Massachusetts 01653 V. D.L. HEIGES ELECTRICAL SERVICES, INC. 5 Montasere Court Dillsburg, Pennsylvania 17019 and LEWIS R. SUNKEL 21 Farm House Lane Camp Hill, Pennsylvania 17011 and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC 1830 South 19`h Street Harrisburg, PA 17104 and COMFORT TECH, INC. 1010 Flowers Lane Marysville, PA 17053 Defendants. CIVIL ACTION 1 NO: OS' 3314/ 12 SUMMONS IN CIVIL ACTION TO: D.L. BEIGES ELECTRICAL SERVICES, INC. 5 Montasere Court Dillsburg, Pennsylvania 17019 LEWIS R. SUNKEL 21 Farm House Lane Camp Hill, Pennsylvania 17011 DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC 1830 South 19s' Street Harrisburg, PA 17104 Date: DOCS_PH 1771185vl COMFORT TECH, INC. 1010 Flowers Lane Marysville, PA 17053 Deputy Prothontary -2- O N W v? 3 s l . -17 emu. ? ? ? -? CTJ Thomas E. Brenner, Esquire Goldberg Katzman, P.C. PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for D.L. Heiges Electric MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff V. D.L. HEIGES ELECTRIC, LEWIS R. : SUNKEL, DAUPHIN ASSOCIATES, : INC., DAUPHIN ELECTRIC, and COMFORT TECH, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 2005-03894 CIVIL ACTION - LAW ENTRY OF APPEARANCE Please enter the appearance of Thomas E. Brenner, Esquire of Goldberg Katzman, P.C. on behalf of Defendant D.L. Heiges Electric. GOLDBERG KATZMAN, P.C. Date: August 25, 2005 B Y Thomas E. Brenner, Esquire Attorney ID #32085 PO Bo), 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for Defendant D.L. Heiges Electric 125550.1 CERTIFICATE OF SERVICE I hereby certify that 1 am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Code, by depositing a copy of same in the United States mail, at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Heidi van Steenburgh, Esquire White & Williams One Liberty Place, Suite 1800 Philadelphia, PA 19103 Dauphin Associates, Inc. 1830 South 19`h Street Harrisburg, PA 17104 Comfort Tech, Inc. 1010 Flowers Lane Marysville, PA 17053 Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Electric 1830 South 19`h Street Harrisburg, PA 17104 GOLDBERG KATZMAN, P.C. ByThomas E. Brenner, Esquire Date: August 25, 2005 (? u C_ ?" i U t.`_ G> N ??7 ?-? ,. c?..? ?? u.t O T1 ---{ Z {'il ? _?i_, t_` ... i ?! -r '_y i ;C' ?.-? c n '?7 :? Thomas E. Brenner, Esquire Goldberg Katzman, P.C. PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for D.L. Heiges Electric MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 2005-03894 V. D.L. HEIGES ELECTRIC, LEWIS R.: SUNKEL, DAUPHIN ASSOCIATES, : INC., DAUPHIN ELECTRIC, and COMFORT TECH, INC., Defendants CIVIL ACTION - LAW PRAECIPE FOR RULE TO FILE COMPLAINT Please issue a Rule upon the Plaintiff to file a Complaint within twenty (20) days after service hereof, or suffer judgment of non pros. GOLDBERG KATZMAN, P.C. By Thomas E. Brenner, Esquire Attorney ID #32085 PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for Defendant D.L. Heiges Electric Date: August 25, 2005 125566.1 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Code, by depositing a copy of same in the United States mail, at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Heidi van Steenburgh, Esquire White & Williams One Liberty Place, Suite 1800 Philadelphia, PA 19103 Dauphin Associates, Inc. 1830 South 19`h Street Harrisburg, PA 17104 Comfort Tech, Inc. 1010 Flowers Lane Marysville, PA 17053 Lewis R. Sunk-el 21 Farm House Lane Camp Hill, PA 17011 Dauphin Electric 1830 South 19`h Street Harrisburg, PA 17104 GOLDBERG KATZMAN, P.C. By: / Thomas E. Brenner, Esquire Date: August 25, 2005 f7 u r,> f?) W:> J o 0, =n rnfn rr MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff V. D.L. HEIGES ELECTRIC, LEWIS R.: SUNKEL, DAUPHIN ASSOCIATES, : INC., DAUPHIN ELECTRIC, and COMFORT TECH, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 2005-03894 CIVIL ACTION - LAW RULE TO: Massachusetts Bay Insurance Company c/o Heidi van Steenburgh, Esquire White & Williams One Liberty Place, Suite 1800 Philadelphia, PA 19103 A Rule is hereby issued upon Plaintiff to file a Complaint within twenty (20) days of service hereof, or suffer judgment of non pros. Protho ry Date: )-O &S IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, 440 Lincoln Street Worcester, Massachusetts 01653 V. D.L. HEIGES ELECTRICAL SERVICES, INC. 5 Montasere Court Dillsburg, Pennsylvania 17019 and LEWIS R. SUNKEL 21 Farm House Lane Camp Hill, Pennsylvania 17011 and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC CIVIL ACTION NO: 05-3894 CIVIL 1830 South 19s' Street Harrisburg, PA 17104 and COMFORT TECH, INC. 1010 Flowers Lane Marysville, PA 17053 PRAECIPE TO REINSTATE WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly reinstate the Plaintiff s Writ of Summons against the Defendants, in the above matter. WHITE AND WILLIAMS LLP Heidi van Steenburgh, Esquire Attorneys for Plaintiff PA Identification # 83186 1800 One Liberty Place Philadelphia, PA 19103 215-864=7126 DOCS_PH 1788465v.1 {7 ? ?ii c ??? ,. ?' ?? {tl ?:?T r ? -?, _?;-? ? -,'i?.% ;;; ?n -? ?' ' r`?) y ?-i - .. °'? ?. ?? Thomas S. Brumbaugh, Esquire Identification Number: 89037 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7060 Attorney for Defendants Gerald Ahnell and Adrienne Ahnell ALLSTATE INSURANCE COMPANY a/s/o ALEIDA VELAZQUEZ, Plaintiff, V. GERALD AHNELL and ADRIENNE AHNELL, Defendants V. NAOMI A. VELAZQUEZ and DAVID VELAZQUEZ, 6 Sunset Circle Mechanicsburg, PA 17050 N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, NNSYLVANIA ACTION - LAW 05-CV-4044 PRAECIPE FOR WRIT OF SUMMONS TO JOIN ADDITIONAL DEFENDANTS TO THE PROTHONOTARY: Please issue a Writ of Summons to join Naomi A. Velazquez and David Velazquez as Defendants in the above-captioned matter. Writ of Summons shall be issued and forwarded to the Sheriff for service on the Additional Defendants at the address indicated. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: August 19, 2005 By. Thomas S. Brum , Esquire ID No.89037 Thomas, Thomas & Hafer, LLP 305 N. Front Street, P. O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7060 a G n? n rN r !::J1CJ N c 1. ? y- bi ._ l? Thomas S. Brumbaugh, Esquire Identification Number: 89037 Thomas, Thomas & Hafer, LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendants Gerald Ahnell and Adrienne Ahnell COMPANY a/s/o ALEIDA VELAZQUEZ, Plaintiff, V. GERALD AHNELL and ADRIENNE AHNELL, Defendants V. NAOMI A. VELAZQUEZ and DAVID VELAZQUEZ, 6 Sunset Circle Mechanicsburg, PA 17050 N THE COURT OF COMMON PLEAS )F CUMBERLAND COUNTY, 'ENNSYLVANIA ACTION - LAW 05-CV-4044 WRIT OF SUMMONS TO: Naomi A. Velazquez and David Velazquez 6 Sunset Circle Mechanicsburg, PA 17050 You are notified that Defendants Gerald Ahnell and Adrienne Ahnell have joined you as a Defendant in the above action. (3m Proth6nota3 Deputy Dated: CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 19th day of August, 2005, a copy of the foregoing Praecipe for Writ of Summons to Join Additional Defendants was served upon the party listed below, by United States First Class Mail, postage prepaid. Stewart C. Crawford, Esquire LAW OFFICES OF STEWART C. CRAWFORD 223 North Monroe Street P.O. Box E Media, PA 19063 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP Thomas S. Brumbau squire Attorney for Defen s Ahnell Cumberland County, ss : The Commonwealth of Pennsylvania to NACMI A. VELAZQUEZ AND DAVID VELAZCUEZ (Name of Additional Defendant) You are notified that GERALD AHNELL AND ADRIEbM AHNELL (Name (s) of Defendant (s) has (have) joined you as an additional defendant in this action, which you are re- quired to defend. Date AUGUST 22, 2005 By (SEAL) Deputy NACMI A. VELAZQUEZ AND DAVID VELAZQUEZ 6 SUNSET CIRCLE MECHANICSBU:RG, PA 17050 a r-a J ro w bEl OLil z t A r Lo E b y J0? Z' O tv a e A H N HHHHH N N r J O 00 ? c d OG? z 0 I 0 0 C) It. iP H H r I I Cc Thomas E. Brenner, Esquire Goldberg Katzman, P.C. PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for D.L. Heiges Electric MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 2005-03894 V. D.L. HEIGES ELECTRIC, LEWIS R.: SUNKEL, DAUPHIN ASSOCIATES, : INC., DAUPHIN ELECTRIC, and COMFORT TECH, INC., Defendants CIVIL ACTION - LAW AFFIDAVIT OF SERVICE Attached hereto as Exhibit "A" is the terrified mail receipt reflecting service of the Rule to File Complaint which was served upon counsel for Massachusetts Bay Insurance Company on September 7, 2005. GOLDBERG KATZMAN, P.C. By: omas E. Brenner, Esquire Attorney ID #32085 PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for Defendant D.L. Heiges Electric Date: August 25, 2005 126137.1 ¦ Complete Items 1, 2, and 3. Also complete At Rem 4 If Restricted Delivery Is desired. X ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mallpleoe, or on the from It space permits. 1. ArtIdWOOdressed to: Heidan Steenburgh, Esquire One erty Place, Suite 1800 Philadelphia, PA 19103 0 Agent le delAreryaddrme diftwent form Item 1? ? Ves M YES, emer delNery address below: E3 No 3. Sen4w 7l pe 11 Certified Mall 0 Exprem Mail 0 Registered 0 Return Receipt for MwchuMMe 0 Insured Mall O C.O.D. 4. Rmtrkted Deliver)? Oafre Fee) 0 Yes ¢'Araftber 7004 0750 0002 3296 4081 (trawnsfwerIrorrrservicetabs) PS Form 3811, February 2oo4 Domeetlc Rstum Raoelpt Q3 loxaesox.Wna EXHIBIT "A" CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Code, by depositing a copy of same in the United States mail, at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Heidi van Steenburgh, Esquire White & Williams One Liberty Place, Suite 1800 Philadelphia, PA 19103 GOLDBERG KATZMAN, P.C. By ( - Thomas E. Brenner, Esquire Date: September 12, 2005 10/24/2005 09:11 W AND W LLP 4 817172406573 N5.533 D02 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subTogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, 440 Lincoln Street Worcester, Massachusetts 01653 V. D.L. HEIGES ELECTRICAL SERVICES, INC. 5 Montasere Court Dillsburg, Pennsylvania 17019 and LEWIS R. SUNKEL 21 Farm House Lane Camp Hill, Pennsylvania 17011 and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC 1830 South 1.9" Street Harrisburg, PA 17104 and COMFORT TECH, INC, 1010 Flowers Lane Marysville, PA 17053 CIVIL. ACTION NO, 2003-03894 CIVIL NOTICE TO DEFEND A' You have been sued in court. If you wish to defend against the claims sct forth in the following pages, you must take nticrt witbin twenty (20) days otter this complaint and notice are served; by entering a wri uen appearance personally or by attorney and frling in writing with the court your defenses or objections to ft claims set forth against you, You are warned that if you fail to do so th* casc may proceed without you and a judgment maybe tattered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose nwncy or property m, other r ghts irnpOrtBnt to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYI^R AT ONCE. if YOU 00 NOT HAVE A LAWYER OR CANNOT AFFOkD ONE, GO TO OR TELEP14ONF THE OFFICE SET FORTH BELOW TO FINr) OUT WHERE YOU CAN GET LEGAL HELP. La"cr Rcfcrrai Service of the Cumberland County Bar Association Cumberland County Bar Association 32 South Redford Street Carlisle, PA 17013 Telephone: (717) 249.3156 Le han denwdodo a ustcd cn la torte. Si ustcd qu.iere defendcrw do estas demarndw expuestm on las p4inas siguiMV, listed tiene veintc (20) dias do pWo al partir de la fccha de la demanda y la noti:ficaci6r. glace falts asentar una compmesen6a eskrita o on persona o con un abogado y entregar a la carte en forma escrita sus dcfensas o sus objecioncs a lag demandas on coritra de su persona- Sea avisado yue o listed no se d6tendc, 1a torte tomar6 medidas y pucde continuer la dcmanda en contra soya sin previo aviso o notiGcaci6n. AdcrnL, la torte puede decidir a favor del dcmandante y requiere que usted cumpia con Was ias provisioner de esta demanda. Usted puede pcrdcr dinero o sus propiedades u otros derechos irrmrotnntes pare usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE XBOGADO 0 St NO TTENE EL D{NERO SUFICIENTE DE PAGAR TAL SERVIC 10, VAYA EN PERSONA O LLAME POR TELtFONO A LA OFICrNA CUYA =ECC16N SB ENCUENTRA. ESCRITA ABAJO PARA AVERJGUAR DONDE SG PUEDE CONSEGUIR ASISTENCGA LEGAL. Lawyer Referral Service of Cie Cumberland County Bar Association Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telefono:f717)249.31% ROCS Pli 1767944vI WHITE AND WILLIAMS LLP Heidi van Steenburgh, Esquire Pennsylvania Bar I.D. 83186 1800 One Liberty Place Philadelphia, PA 19103 215-864-7126 Attorneys for Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2005-03894 CIVIL JURY TRIAL DEMANDED COMPLAINT Plaintiff Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club by and through its counsel, White and Williams LLP, hereby demands judgment against Defendants D.L Heiges Electrical Services, Inc., Lewis R. Sunkel, Dauphin Associates, Inc., a/k/a d/b/a Dauphin Electric and Comfort Tech, Inc. and in support thereof avers as follows: Plaintiff Massachusetts Bay Insurance Company is a New Hampshire corporation with its principal place of business located at 440 Lincoln Street, Worcester, Massachusetts. 2. Upon information and belief, Defendant D.L. Heiges Electrical Services, Inc. is a Pennsylvania corporation with its principal place of business located at 5 Montasere Court, Dillsburg, Pennsylvania. 3. Upon information and belief, Defendant Lewis R. Sunkel is an adult individual residing at 21 Farm House Lane, Camp Hill, Pennsylvania. DOCS_PH 1589008v.1 4. Upon information and belief, Defendant Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric is a Pennsylvania corporation with its principal place of business located at 1830 South 19th Street, Harrisburg, Pennsylvania. Upon information and belief, Defendant Comfort Tech, Inc. is a Pennsylvania corporation with its principal place of business located at 1010 Flowers Lane, Marysville, Pennsylvania. 6. Plaintiff issued insurance policy number ZDN 6867123 to The Fitness Company, Inc., d/b/a Alpha Racquetball and Fitness Club (hereinafter "Plaintiff's insured"), covering its business personal property located at 4732 Old Gettysburg Road, Mechanicsburg, Pennsylvania. 7. Plaintiff's insured operated a health and fitness facility at 4732 Old Gettysburg Road (hereinafter the "subject premises"). 8. In or about Summer, 2001, Plaintiff's insured hired and/or retained Lewis Sunkel to service and/or upgrade the electrical system and components at the subject premises. 9. Defendant Sunkel worked at the subject premises until December, 2001. 10. Upon information and belief, Plaintiff's insured hired and/retained Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric (hereinafter "Dauphin") to work at the subject premises. During such work, Dauphin had reason to make electrical connections and/or adjustments. 11. Upon information and belief, Plaintiff s insured hired and/or retained Comfort Tech to work at the subject premises. During such work, Comfort Tech had reason to make electrical connections and/or adjustments. 12. Thereafter, in or about July, 2003, circuit breakers at the subject premises began tripping. -2- DOCS PH 1589008v.1 13. Plaintiff's insured hired and/or retained Defendant D.L. Heiges Electrical Services (hereinafter "Heiges Electrical") to service the electrical system. 14. Heiges Electrical serviced the electrical system and component parts at the subject premises on several occasions in July, 2003. 15. On or about July 30, 2003, a devastating fire occurred at the subject premises causing substantial destruction to Plaintiff's insured's business personal property. 16. Sunkel was negligent in failing to properly service and/or upgrade the electrical system and components at the subject premises and such negligence caused a fire and subsequent property damage. 17. Dauphin was negligent in failing to properly service electrical components at the subject premises and such negligence caused a fire and subsequent property damage. 18. Comfort Tech was negligent in failing to properly service electrical components at the subject premises and such negligence caused a fire and subsequent property damage. 19. Heiges Electrical was negligent in failing to properly service and/or repair the electrical system and components at the subject premises and such negligence caused a fire and subsequent property damage. 20. As a direct and proximate result of the acts and/or omissions of Defendants, the resulting fire caused extensive damage to Plaintiff's insured's business personal property, repair expenses, business interruption losses and incidental and consequential damages. 21. Massachusetts Bay, pursuant to the terms of the insurance agreement, paid its insured in excess of $100,000 for damages to its insured's business personal property. -3- DOCS PH 1589008v.1 22. As a result of the payments by Massachusetts Bay to its insured, Massachusetts Bay is now subrogated to the rights of its insured to recover for the damages caused by the acts and/or omissions of Defendants. 23. Massachusetts Bay, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, now seeks recovery from Defendants. FIRST COUNT - NEGLIGENCE Plaintiff v. Defendant D.L. HeiLyes Electrical Services 24. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 25. Heiges Electrical owed a duty to Plaintiff's insured to perform its duties in a careful and proper manner so as not to cause harm to the subject premises. 26. The above mentioned fire and resulting damages were caused by and resulted from the negligent, grossly negligent, careless and reckless acts and/or omissions of Heiges Electrical by and through its agents, servants, employees, representatives, subcontractors, subagents and/or workmen, acting within the course and scope of their authority and employment. Said acts and/or omissions included, but are not limited to, the following: a. failing to properly and adequately service the electrical system and components at the subject premises; b. failing to properly and adequately address the cause of the tripping circuit breakers at the subject premises: failing to advise Plaintiff's insured that a serious and dangerous condition was created by the electrical system and components at the subject premises; d. failing to identify and correct a serious electrical problem at the subject premises; e. failing to recognize and/or correct the danger created by the bypassed high limit switch at the subject premises; -4- DOCS_PH 1589008v.1 f. failing to recognize that the electrical wiring at the subject premises had inadequate and/or improper insulation; g. failing to warn Plaintiff's insured regarding the use of wiring with inadequate and/or improper insulation; h. failing to red flag and/or remove from operation electrical wiring and systems that posed and/or created a risk of fire; i. failing to recognize a hazard of fire; failing to properly and adequately hire, instruct and/or supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system and components; k. failing to take reasonable steps to ensure that its agents, servants, employees, representatives, subcontractors, subagents and/or workmen were observing applicable safety standards and procedures while servicing and/or repairing the electrical system and components at the subject premises; 1. failing to take reasonable steps to ensure that the electrical system and components were safely and properly functioning; in. failing to warn Plaintiff s insured of the hazards associated with an improperly functioning electrical system; n. failing to inspect, test and/or otherwise ensure that the electrical system and components were properly and safely functioning; and o. otherwise failing to perform its work in a good and workmanlike manner. 27. As a direct and proximate result of the negligent, grossly negligent, careless, reckless and/or other liability producing conduct of Heiges Electrical, Plaintiff s insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Heiges Electrical. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment -5- DOCS PH 1589008.1 against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. SECOND COUNT - BREACH OF CONTRACT Plaintiff v. Defendant D.L. Heizes Electrical Services 28. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 29. In July, 2003, Plaintiff's insured and Heiges Electrical entered into an agreement whereby Heiges Electrical would service and/or repair the electrical system and components at the subject premises. 30. Pursuant to the terms of the agreement, Heiges Electrical was responsible for servicing and/or repairing the electrical system and components in a safe and proper manner. 31. Heiges Electrical breached its agreement with Plaintiff's insured by failing to properly service and/or repair the electrical system and components at the subject premises, failing to properly and adequately supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen and failing to provide personnel who would perform their duties in a careful and proper manner. 32. As a direct and proximate result of the breach of contract by Heiges Electrical, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Heiges Electrical. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment -6- DOCS PH 1589008v.1 against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. THIRD COUNT - BREACH OF EXPRESS AND/OR IMPLIED WARRANTY Plaintiff v. Defendant D.L. Heiges Electrical Services 33. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 34. At the time Heiges Electrical undertook to perform its services at the subject premises, it was under an express and/or implied obligation to perform such services in a good and workmanlike manner. 35. Heiges Electrical breached its express and/or implied warranty that its services would be performed in a good and workmanlike manner by failing to properly and adequately service and/or repair the electrical system and components at the subject premises, failing to recognize a hazard of fire and failing to properly and adequately hire, instruct and/or supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system and components and failing to provide personnel who would perform their duties in a careful and proper manner so as to not cause harm to the subject premises. 36. As a direct and proximate result of the breach of its express and/or implied warranty by Heiges Electrical, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Heiges Electrical. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment -7- DOCS PH 1589008v.1 against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. FOURTH COUNT - NEGLIGENCE Plaintiff v. Defendant Lewis Sunkel 37. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 38. Lewis Sunkel owed a duty to Plaintiff's insured to perform his duties in a careful and proper manner so as not to cause harm to the subject premises. 39. The above mentioned fire and resulting damages were caused by and resulted from the negligent, grossly negligent, careless and reckless acts and/or omissions of Sunkel, acting by and through his agents, servants, employees, representatives, subcontractors, subagents and/or workmen, acting within the course and scope of their authority and employment. Said acts and/or omissions included, but are not limited to, the following: a. failing to properly and adequately install and service the electrical system and components at the subject premises; b. failing to properly and adequately upgrade the electrical system and components at the subject premises; C. failing to follow the sauna manufacturer's instructions regarding the type of electrical wiring to be used; d. failing to use electrical wire with the proper insulation during this work; e. bypassing critical electrical safety features; f. failing to correct a deficient and dangerous condition created by bypassing the high limit switch; g. failing to recognize that the electrical wiring had improper and/or inadequate insulation; h. failing to warn Plaintiffs insured regarding the use of wiring with improper and/or inadequate insulation; failing to recognize a hazard of fire; -8- DOCS_PH 1589008v.1 j. failing to properly and adequately hire, instruct and/or supervise his agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system and components; k. failing to take reasonable steps to ensure that his agents, servants, employees, representatives, subcontractors, subagents and/or workmen were observing applicable safety standards and procedures while servicing and/or repairing the electrical system and components at the subject premises; 1. failing to take reasonable steps to ensure that the electrical system and components were safely and properly functioning; in. failing to warn Plaintiff's insured of the hazards associated with an improperly functioning electrical system; n. failing to inspect, test and/or otherwise ensure that the electrical system and components were properly and safely functioning; and o. otherwise failing to perform his work in a good and workmanlike manner. 40. As a direct and proximate result of the negligent, grossly negligent, careless, reckless and/or other liability producing conduct of Sunkel, Plaintiffs insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Lewis Sunkel. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. -9- DOCS PH 1589008v.1 FIFTH COUNT - BREACH OF CONTRACT Plaintiff v. Defendant Lewis Sunkel 41. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 42. In 1999 or 2000, Plaintiff's insured and Lewis Sunkel entered into an agreement whereby Sunkel would upgrade, service and/or repair the electrical system and components at the subject premises. 43. Pursuant to the terms of the agreement, Sunkel was responsible for upgrading, servicing and/or repairing the electrical system and components in a safe and proper manner. 44. Sunkel breached his agreement with Plaintiff's insured by failing to properly upgrade, service and/or repair the electrical system and components at the subject premises, failing to properly and adequately supervise his agents, servants, employees, representatives, subcontractors, subagents and/or workmen and failing to provide personnel who would perform their duties in a careful and proper manner. 45. As a direct and proximate result of the breach of contract by Sunkel, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Lewis Sunkel. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. -10- DOCS PH 1589008v.1 SIXTH COUNT - BREACH OF EXPRESS AND/OR IMPLIED WARRANTY Plaintiff v. Defendant Lewis Sunkel 46. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 47. At the time Lewis Sunkel undertook to perform his services at the subject premises, he was under an express and/or implied obligation to perform such services in a good and workmanlike manner. 48. Sunkel breached the express and/or implied warranty that his services would be performed in a good and workmanlike manner by failing to properly and adequately upgrade service and/or repair the electrical system and components at the subject premises, failing to recognize a hazard of fire and failing to properly and adequately hire, instruct and/or supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system and components, failing to provide personnel who would perform their duties in a careful and proper manner so as to not cause harm to the subject premises. 49. As a direct and proximate result of the breach of his express and/or implied warranty by Sunkel, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Sunkel, Dauphin Associates, Dauphin and/or Comfort Tech, Inc. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment -11- DOCS_PH 1589008v.1 against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. SEVENTH COUNT - NEGLIGENCE Plaintiff v. Defendants Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric and Comfort Tech, Inc. 50. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 51. Dauphin and Comfort Tech owed a duty to Plaintiff's insured to perform their duties in a careful and proper manner so as not to cause harm to the subject premises. 52. The above mentioned fire and resulting damages were caused by and resulted from the negligent, grossly negligent, careless and reckless acts and/or omissions of Dauphin and Comfort Tech, acting by and through their agents, servants, employees, representatives, subcontractors, subagents and/or workmen, acting within the course and scope of their authority and employment. Said acts and/or omissions included, but are not limited to, the following: a. failing to properly and adequately service the electrical system, its components and other electrical devices at the subject premises; b. failing to follow the sauna manufacturer's instructions regarding the type of electrical wiring to be used; C. failing to make proper and adequate electrical connections during its work; d. failing to use electrical wire with the proper insulation during their work; e. bypassing critical electrical safety features; f. failing to correct a deficient and dangerous condition created by bypassing the high limit switch; g. failing to recognize that the electrical wiring had improper and/or inadequate insulation; h. failing to warn Plaintiff's insured regarding the use of wiring with improper and/or inadequate insulation; i. failing to recognize a hazard of fire; -12- DOCS_PH 1589008v.1 j. failing to properly and adequately hire, instruct and/or supervise their agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system, its components and other electrical devices; k. failing to take reasonable steps to ensure that their agents, servants, employees, representatives, subcontractors, subagents and/or workmen were observing applicable safety standards and procedures while servicing and/or repairing the electrical system, its components and other electrical devices at the subject premises; failing to take reasonable steps to ensure that the electrical system, its components and other electrical devices were safely and properly functioning; M. failing to warn Plaintiffs insured of the hazards associated with an improperly functioning electrical system or electrical devices; n. failing to inspect, test and/or otherwise ensure that the electrical system, its components and other electrical devices were properly and safely functioning; and o. otherwise failing to perform their work in a good and workmanlike manner. 53. As a direct and proximate result of the negligent, grossly negligent, careless, reckless and/or other liability producing conduct of Dauphin and Comfort Tech, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Dauphin and Comfort Tech. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. -13- DOCS PH 1589008v.1 EIGHTH COUNT - BREACH OF CONTRACT Plaintiff v. Defendants Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric and Comfort Tech, Inc. 54. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 55. Plaintiff's insured and Dauphin and Comfort Tech entered into an agreement whereby Dauphin and Comfort Tech would perform work on the electrical system, its components and/or other electrical devices at the subject premises. 56. Pursuant to the terms of the agreement, Dauphin and Comfort Tech were responsible for servicing and/or repairing the electrical system, its components and/or other electrical devices in a safe and proper manner. 57. As a direct and proximate result of the negligence, gross negligence, carelessness, recklessness and/or other liability producing conduct of Dauphin and Comfort Tech, as more fully set forth herein and incorporated by reference, Dauphin and Comfort Tech breached their contract with Plaintiff's insured. 58. As a direct and proximate result of the breach of contract by Dauphin and Comfort Tech, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Lewis Sunkel. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. -14- DOCS PH 1589008v.1 NINTH COUNT - BREACH OF EXPRESS AND/OR IMPLIED WARRANTY Plaintiff v. Defendants Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric and Comfort Tech, Inc. 59. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 60. At the time Dauphin and Comfort Tech undertook to perform their services at the subject premises, they were under an express and/or implied obligation to perform such services in a good and workmanlike manner. 61. As a direct and proximate result of its conduct, as more fully set forth above and incorporated herein by reference, Dauphin and Comfort Tech breached their express and/or implied warranties that their services would be performed in a good and workmanlike manner by failing to properly and adequately service and/or repair the electrical system, its components and other electrical devices at the subject premises, failing to recognize a hazard of fire and failing to properly and adequately hire, instruct and/or supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system, its components and other electrical devices, failing to provide personnel who would perform their duties in a careful and proper manner so as to not cause harm to the subject premises and otherwise failing to perform their work in a good and workmanlike manner. 62. As a direct and proximate result of the breach of express and/or implied warranties by Dauphin and Comfort Tech, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Dauphin and Comfort Tech. -15- DOCS PH 1589008v.1 WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. Respectfully Submitted, WHITE AND WILLIAMS LLP eidi van Steenburgh, Esquire Attorneys for Plaintiff Dated: 10-71)-05 -16- DOGS PH 1589008v.1 VERIFICATION I, Heidi van Steenburgh, attorney for Massachusetts Bay Insurance Company, verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that I am making these statements subject to the penalties of 18 Pa. C. S. § 4904, relating to unsworn falsification to authorities. V 4iv; 2St e lenb- ggh Dated: 10 --CO 'COS DOCS PH 1589008v.1 CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of the foregoing document was served upon all parties listed below by First Class Mail, postage prepaid: Thomas E. Brenner, Esquire Goldberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric 1830 South 19th Street Harrisburg, PA 17104 Comfort Tech, Inc. 1010 Flowers Lane Marysville, PA 17053 eDated: 10 --;?Q - 5 DOCS_PH 1589008v.1 ?_ 7 ^'t1 _t .. `,, SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03894 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MASSACHUSETTS BAY INSURANCE CO VS DL HEIGES ELECTRICAL SERVICES 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: DL HEIGES ELECTRICAL SERVICES INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of YORK serve the within WRIT OF SUMMONS County, Pennsylvania, to On August 31st , 2005 , this office was in receipt of the attached return from YORK Sheriff's Costs Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep York County 37.01 .00 74.01 08/31/2005 WHITE & WILLIAMS So answers, R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this y& day of ltdt?rn vp? A.D. d Pro onot ry j3,/aC-? COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 SERVICE CALL (717) 771-9601 SHERIFF SERVICE I INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LM '1 THRU 12 DO NOT DETACH ANY COPIES 1 PLAINTIFFIS/ 2. COUR U ER Massachusetts Bay insurance, et. al. -38 Civil - 4. TYPE OF WRIT OR COM OMPLAINTS I CA DEFENDANT/S/ Writ of Summons/Notice f)-1- Hpi SERVE 5. NAME OF INDIVIDUAL, COMPANY. CORPORATION, ETC. T SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD n r HeigP Electrical Services, Inc 6. ADDRESS (STREET OR RFO WITH BOX NUMBER. APT NO.. CITY, BORO, TWP_ STATE AND ZIP CODE) AT S Mnnt-asara Crnlrf_ Ili11ghurg. PA 17019 7. INDICATE SERVICE: O PERSONAL O PERSON IN CHARGE III DEPUTIZE U O NOW 4/2/OS ,20 05 (,SHERIFF York COUNTY to e to law. This deputization being made at the request and risk of the plaintiff. U 1ST CLASS MAIL U POSTED U OTHER do hereby deputize the sheriff of lake return tgel`¢faccording 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE. O/C LUTOE Please mail return of service to Cumberland County Sheriff. Thank you. ADVANCE FEE PD BY CUMBERLAND COUNTY SHERIFF NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever 1s found in possession. after notifying person of levy or attachment, Without liabilityon the pad of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 0. TYPE NAME and ADDRESS of ATTORNEY I ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. DATE FILED HEIDI VAN STEENBURGH ESQ 215-864-7126 7/28/05 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This. area must be completed d notice is to be mailed). CUMliE!,LAND COUNTY SHERIFF 1 COURTHOUSE SQUARE CARLISLE PA 17013 13, 1 acknowledge receipt of the writ u complaint as indicated above. 14. R AHRENS I I DATE RECEIVED 8/3105 15. EzpiraaoNHearmg Uate 8/28/05 16. HOW SERVED: PERSONAL (- RESIDENCE ( POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BELOW 17. O 1 h eby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) _ 16. A TITL FIIN NIDUAL pE?O?/pLIST //j,,DPRE5S HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19 A1a1 of se K. T20 Ti/me AS erv/?'ge 21 . ATTEMPTS Date Ti a MI 5 Int. Dale Time Mile Int. Dale Time Mites 1 Dale Time Miles Int. Date Time Miles Int. Dale Time Mies Int. 23. Advance Costs 24. Servicecosts 25. N/F 26. Mileage 27. Postage 28 Sub T 1 ? 29. Pound 30. Notary ? 31 . Surchg. 32. Tot. Costs 0 33 Costs D a e heck No Ill 100.00 $109 oS 3`? t? ,t?. 1 r, 34. Foreign County Costal 35. Advance Costs 36. Service Costs 37. Notary Cert. 38. Mileage/Postage/Not Found 39. Total Costs 40. Costs Due or Refund 11 ' R 1 H 41. AFFIRMED and subscribed to before me this 7 ZI m M. Signature of /J - 45. DA(f7/? o? U? "Y of AUGU?p Dep. Sheriff G O PROTHY I NOTARY 46. Signature of ork County Sheriff 47. DATE! WILLIAM C5 HOSE, SHERIF, f24/05 Notarial Seal -? 48. Signature of Foreign h 49 DATE _ oew.,_,,., c ss .. CaunN S eriff SHERIFF'S RETURN - NOT FOUND CASE NO: 2005-03894 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND MASSACHUSETTS BAY INSURANCE CO VS DL HEIGES ELECTRICAL SERVICES R. Thomas Kli ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT SUNKEL LEWIS R but was unable to locate Him in his bailiwick. He therefore returns the WRIT OF SUMMONS the within named DEFENDANT 21 FARM HOUSE LANE NOT FOUND , as to SUNKEL LEWIS R CAMP HILL, PA 17011 GIVEN ADDRESS IS LOCATED IN YORK COUNTY. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit 5.00 Surcharge 10.00 .00 21.00 So answe R. Thomas Kline Sheriff of Cumberland County WHITE & WILLIAMS 08/31/2005 Sworn and subscribed to before me this q = day of - U-l eill A.D. P othon? SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03894 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MASSACHUSETTS BAY INSURANCE CO VS DL HEIGES ELECTRICAL SERVICES R. Thomas K1 , 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 SUNKEL LEWIS R but was unable to locate Him deputized the sheriff of YORK serve the within WRIT OF SUMMONS to wit: He therefore County, Pennsylvania, to On October 31st , 2005 , this office was in receipt of the attached return from YORK Sheriff's Costs Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep York County 96.72 .00 121.72 10/31/2005 WHITE & WILLIAMS So znswqrs, R? Thomas Kli e Sheriff of Cumberland County Sworn and subscribed to before me this day of e/V Prot tar in his bailiwick COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 SERVICE CALL (717) 771-9601 SHERIFF SERVICE I INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LNE 1 TMU 12 DO NOT DETACH ANY COPIES 1 PLAINTIFF151 Massachusetts Bay Insurance CCmpany 2. WUHI NuMCen _05-3894 civil . 4. TYPE OF WRIT OR COMPLAINYL 3 DEFENDANT/S/ j' - D.L. Heiges Electrical Services Inc et al I Writ of SUn7nORSI CeIsS u? SERVE 5 NAME OF INDIVIDUAL, COMPANY. CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD Lewis R. Sunkel 6. ADDRESS (STREET OR RFO WITH BOX NUMBER. APT NO. CITY, BORO, TWP. STATE AND ZIP CODE) AT 21 Farm House Lane Camp Hill, PA 17011 7 INDICATE SERVICE U PERSONAL O PERSON IN CHARGE X)4 DEPUTIZE yC T LL1n? U 1ST CLASS MAIL U POSTED U OTHER NOW 2005-_ I, SHERIFF OF VOW COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute thi It ake return thecording to law. This deputization being made at the request and risk of the plaintiff ?i' SHERIFF OF4910lcoulm 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WALL ASSIST IN EXPEDITING SERVICE. Curn r aR ?t Cu CO L, Please mail return of? service to CuTberland County Sheriff. Thank you. ?`t?JU,I n vt c o d t si Q Cn? ? y ? { iSt? ?-t??. --- NOTE: ONLY APPLICABLE ON WRIT bF EXECVION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy a attachment. without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE t0. TELEPHONE NUMBER 11DATE FVLED /.._L__JI. / / ' / /1<- 12 0) 13. 1 acknowledge receipt of the writ or complaint as indicated above. 16. HOW SERVED: PERSONAL( 17. O 1 hereby testy Apd return a 1 23. Advance Costs 24 //Vl Al 35. Advance Costs 41. AFFIRMED and subscribed to before 42 dart of NOTAR)AL SEAL LISA L. BOWMAN, NOTARY PUBLICCITY OF YORK, YORK COUNTY COMMISSION EXPIRESAUc . 5 BELOW. (This area must be completed 4 notice is to be mailed) N /I , 1 Sub Total 129. Sv V(eof Maea4e/Postaga/N. Foun y,i .; r. ;L. it r 48. Signature of Foreign County Sheriff 31 Surchg. 32 Tot Costs 33 39 Total Costs NSWERS 40. Costs Due or 4s. U A 16 's'd 1 UI/2 :/ ir :, 49 DATE Z pccincunF I? pnsTpn r I PnF I I SHERIFF'S OFFICE f I OTHER 1 I SEE REMARKS BELOW SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03894 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MASSACHUSETTS BAY INSURANCE VS DL HEIGES ELECTRICAL SERVICES 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: DAUPHIN ASSOCIATES INC DBA but was unable to locate Them DAUPHIN ELECTRIC deputized the sheriff of DAUPHIN in his bailiwick. He therefore serve the within WRIT OF SUMMONS County, Pennsylvania, to On August 31st , 2005 , this office was in receipt of t attached return from DAUPHIN Sheriff's Costs: So answe-sue Docketing 6.00 ---"-? Out of County 9.00 Surcharge 10.00 R. Thomas Kline _ Dep Dauphin County 26.25 Sheriff of Cumberland County Postage 1.48 JL/J 08/31/2005 WHITE & WILLIAMS Sworn and subscribed to before me this day of A.D. onot y In The Court of Common Pleas of Cumberland County, Pennsylvania Massachusetts Bay Insurance Co, et. al. vs. D.L. Heiges Electrical Services, Inc., et. al. Serve: Dauphin Associates, Inc,. No. 2005-3894 Civil d/b/a Dauphin Electric Now, 8/2/05 , 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. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to copy of the original So answers, the contents thereof. Sheriff of Sworn and subscribed before me this day of 20 COSTS SERVICE MILEAGE AFFIDAVIT 20 , at o'clock M. served the County, PA S (§)ffi'cr of e *4eri ff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania MASSACHUSETTS BAY INSURANCE COMPANY Vs County of Dauphin DAUPHIN ASSOCIATES, INC. D/B/A DAUPHIN Sheriff's Return No. 1384-T - - -2005 OTHER COUNTY NO. 3894 CIVIL 2005 NOW:August 5, 2005 at 1:OOPM served the within WRIT OF SUMMONS upon DAUPHIN ASSOCIATES, INC. D/B/A DAUPHIN by personally handing ELECTRIC to BOB TWOMEY MANAGER 1 true attested copy(ies) of the original WRIT OF SUMMONS and making known to him/her the contents thereof at 1830 SOUTH 19TH ST HARRISBURG, PA 17104-0000 Sworn and subscribed to before me this 9TH day of AUGUST, 2005 11 A---I SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2006 So Answers, e?° `c- t? Sheriff of Dauphin County, Pa. By Deputy Sheriff Sheriff's Costs:$26.25 PD 08/04/2005 RCPT NO 209358 SL SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03894 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MASSACHUSETTS BAY INSURANCE CO VS DL HEIGES ELECTRICAL SERVICES 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: COMFORT TECH INC but was unable to locate Them deputized the sheriff of PERRY in his bailiwick. He therefore County, Pennsylvania, to serve the within WRIT OF SUMMONS On August 31st , 2005 , this office was in receipt o attached return from PERRY Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep Perry County 39.20 nn So answers : R'. Thomas Kline Sheriff of Cumberland County VTLV 08/31/2005 WHITE & WILLIAMS Sworn and subscribed to gbefore me this day of7&-ae- ? .20v5 D. onot , In The Court of Common Pleas of Cumberland County, Pennsylvania Massachusetts Bay Insurance, et. al. VS D.L. Heiges Electrical, et. al. Serve: Comfort Tech, Inc. No. 9005-4894 Civil Now, 8/2 /05 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, August 9, , 20 05 , at3:10 o'clock P M. served the within Writ of Summons upon Comfort Tech, Inc at 1010 Flowers Lane (Rye Township) Marysville, PA 17053 by handing to Eric Hicks, Job Co-ordinator-Person in CHarge a TRUE & ATTESTED copy of the original Writ of Summons and made known to Him the contents thereof. So answers, Brady T. Cramer Deputy' Sheri of Perry County, PA COSTS SERVICE S MILEAGE AFFIDAVIT Sworn and subscribed before me this/( ),Ih day of ?u 5 , 2005- N TARIA EAL ARGAREf F. FLICRINGER, NOTARY PUBLIC FIM BLOOMFIELD BORO., PERRY COUNTY MY COMMISSION EXPIRES FEB. 16 2008 Thomas E. Brenner, Esquire Goldberg Katzman, P.C. PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for D.L. Heiges Electric MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC., DAUPHIN ELECTRIC, and COMFORT TECH, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 2005-03894 CIVIL ACTION - LAW NOTICE TO PLEAD TO: Massachusetts Bay Insurance Co. c/o Heidi van Steenburgh, Esquire White & Williams One Liberty Place, Suite 1800 Philadelphia, PA 19103 Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Comfort Tech, Inc. 1010 Flowers Lane Marysville, PA 17053 Dauphin Electric 1840 South 19`h Street Harrisburg, PA 17104 YOU ARE REQUIRED to plead to the within New Matter and New Matter Pursuant to 2252(d) within 20 days of service hereof or a default judgment may be entered against you. GOLDBERG KATZMAN, P.C. By:--± Thomas E. Brenner, Esquire Attorney ID # 32085 P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Defendants D.L. Heiges Electrical Services, Inc. Date: November 9, 2005 Thomas E. Brenner, Esquire Goldberg Katzman, P.C. PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for D.L. Heiges Electric MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC., DAUPHIN ELECTRIC, and COMFORT TECH, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 2005-03894 CIVIL ACTION - LAW ANSWER WITH NEW MATTER OF DEFEDANT D.L. HEIGES ELECTRICAL SERVICES INC. TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant D.L. Heiges Electrical Services, Inc., by their attorneys, Goldberg Katzman, P.C., who state: 1. Admitted. 2. Admitted. 3. Denied. After reasonable investigation, the answering party is without knowledge or information sufficient to form a belief ast to the truth of this paragraph. 4. Denied. After reasonable investigation, the answering party is without knowledge or information sufficient to form a belief ast to the truth of this paragraph. 5. Denied. After reasonable investigation, the answering party is without knowledge or information sufficient to form a belief ast to the truth of this paragraph. 6. Denied. After reasonable investigation, the answering party is without knowledge or information sufficient to form a belief ast to the truth of this paragraph. 7. Admitted. 8. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e). 9. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e). 10. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e). 11. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e). 12. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e). 13. Denied in part. Defendant D.L. Heiges was contacted to address an electrical issue involving the women's sauna. 14. Denied as stated. Defendant D.L. Heiges was only present on July 11, 2003 to address an electrical issue involving the women's sauna. 15. Admitted. 16. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e). 17. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e). 18. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e). 2 19. Denied. This paragraph states a legal conclusion to which no response is necessary. In further response, the only repairs made by Defendant H.L. Heiges involve the women's sauna. 20. Denied. This paragraph states a legal conclusion to which no response is necessary. As to the damages, the remainder of the paragraph is denied pursuant to Pa.R.C.P. 1029(e). 21. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e). 22. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e). 23. Denied. This paragraph is denied pursuant to Pa.R.C.P. 1029(e). FIRST COUNT Plaintiff v. Defendant D.L. Heiges Electrical Service, Inc. 24. The answers to paragraphs 1 through 23 are incorporated herein by reference. 25. Admitted. 26. Denied. It is denied that Defendant D.L. Heiges was negligent, grossly negligent, careless or reckless. It is denied that any agents, servants or employees of Defendant D.L. Heiges were involved in work. The work performed was performed by Don Heiges only. 3 26(a)-(o). These subparagraphs are denied pursuant to Pa.R.C.P. 1029(e). Defendant D.L. Heiges only performed work on the women's sauna. 27. Denied. The paragraph states a series of legal conclusions to which no response is necessary. WHEREFORE, Defendant D.L. Heiges Electrical Services, Inc. requests that Count I of Plaintiffs Complaint be dismissed, with prejudice. SECOND COUNT - BREACH OF CONTRACT Plaintiff v. Defendant D.L. Heiges Electrical Service, Inc. 28. The answers to paragraphs 1 through 27 are incorporated herein by reference. 29. Denied. There was no agreement or contract entered into by Plaintiffs insured and Defendant D.L. Heiges. 30. The answer to paragraph 29 is incorporated herein by reference. 31. The answer to paragraph 29 is incorporated herein by reference. 32. The answer to paragraph 29 is incorporated herein by reference. WHEREFORE, Defendant D.L. Heiges Electrical Services, Inc. requests that Count II of Plaintiffs Complaint be dismissed, with prejudice. 4 THIRD COUNT - BREACH OF EXPRESS OR IMPLIED WARRANTY Plaintiff v. Defendant D.L. Heiges Electrical Service, Inc. 33. The answers to paragraphs 1 through 32 are incorporated herein by reference. 34. Denied. No warranties were provided with regard to the electrical service work. 35. The answer to paragraph 34 is incorporated herein by reference. 36. The answer to paragraph 34 is incorporated herein by reference. WHEREFORE, Defendant D.L. Heiges Electrical Services, Inc. requests that County III of Plaintiff s Complaint be dismissed, with prejudice. FOURTH COUNT - NEGLIGENCE Plaintiff v. Defendant Lewis Sunkel 37-40. Denied. These paragraphs are directed to another Defendant and no response is required by Defendant D.L. Heiges Electrical Services, Inc. FIFTH COUNT - BREACH OF CONTRACT Plaintiff v. Defendant Lewis Sunkel 41-45. Denied. These paragraphs are directed to another Defendant and no response is required by Defendant D.L. Heiges Electrical Services, Inc. 5 SIXTH COUNT - BREACH OF EXPRESS OR IMPLIED WARRANTY Plaintiff v. Defendant Lewis Sunkel 46-49. Denied. These paragraphs are directed to another Defendant and no response is required by Defendant D.L. Heiges Electrical Services, Inc. SEVENTH COUNT - NEGLIGENCE Plaintiff v. Defendants Dauphin Associates, Inc. a/k/a Dauphin Electric and Comfort Tech, Inc. 50-53. Denied. These paragraphs are directed to another Defendant and no response is required by Defendant D.L. Heiges Electrical Services, Inc. EIGHTH COUNT - BREACH OF CONTRACT Plaintiff v. Defendants Dauphin Associates, Inc. a/k/a Dauphin Electric and Comfort Tech, Inc. 54-58. Denied. These paragraphs are directed to another Defendant and no response is required by Defendant D.L. Heiges Electrical Services, Inc. NINTH COUNT - BREACH OF EXPRESS OR IMPLIED WARRANTY Plaintiff v. Defendants Dauphin Associates, Inc. a/k/a Dauphin Electric and Comfort Tech, Inc. 59-62. Denied. These paragraphs are directed to another Defendant and no response is required by Defendant D.L. Heiges Electrical Services, Inc. 6 NEW MATTER DIRECTED TO PLAINTIFF 63. The aforesaid fire arose from the assumption of risk by the Plaintiffs insured. 64. The aforesaid fire arose from the comparative negligence of Plaintiffs insured. 65. The aforesaid fire arose from negligence on the part of persons or entities not named in this litigation. 66. Plaintiff failed to mitigation their damages. 67. The Plaintiffs damages are limited pursuant to concepts of depreciation and wear and tear. 68. No actions of Defendant D.L. Heiges Electrical Services, Inc. caused the fire referred to in the Complaint. WHEREFORE, Defendant D.L. Heiges Electrical Services, Inc. requests that the Plaintiffs Complaint be dismissed, with prejudice. NEW MATTER PURSUANT TO 2252(D) D.L. Heiges Electrical Services, Inc. v. Lewis R. Sunkel, Dauphin Associates a/k/a Dauphin Electric and Comfort Tech, Inc. 69. The averments of the Counts Four through Nine of the Complaint are incorporated herein by reference. 7 70. Should Defendant D.L. Heiges be found liable on the Plaintiffs claim, which liability is specifically denied, then Defendants Sunkel, Dauphin Electric and Comfort Tech, Inc. are liable over to Defendant D.L. Heiges on the Plaintiffs cause of action for indemnity and/or contribution; in the alternative, Defendants Sunkel, Dauphin Electric and Comfort Tech, Inc. are jointly and/or severally liable on the Plaintiffs cause of action. WHEREFORE, Defendant D.L. Heiges Electrical Services, Inc. requests judgment against Defendants Lewis R. Sunkel, Dauphin Associates a/k/a Dauphin Electric and Comfort Tech, Inc., finding them liable over to Defendant D.L. Heiges Electrical Services, Inc. for indemnity and contribution on the Plaintiff s claims; or in the alternative, jointly and severally liable on the Plaintiffs claims. GOLDBERG KATZMAN, P.C. Thomas E. Brenner, Esquire Attorney ID #32085 PO Box 1268 Harrisburg, PA 17108-1268 717-2344161 Attorneys for Defendant D.L. Heiges Electric Date: November 9, 2005 VERIFICATION I, Donald Heiges, hereby acknowledge that I am an authorized representative of D.L. Heiges Electrical Services, Inc., that I have read the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. D.L. HEIGES ELECTRICAL SERVICES, INC. By: Donald Heiges Date: 11/7/' 128009.1 CERTIFICATE OF SERVICE I hereby terrify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Code, by depositing a copy of same in the United States mail, at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Heidi van Steenburgh, Esquire White & Williams One Liberty Place, Suite 1800 Philadelphia, PA 19103 Comfort Tech, Inc. 1010 Flowers Lane Marysville, PA 17053 Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Electric 1830 South 19`h Street Harrisburg, PA 17104 GOLDBERG KATZMAN, P.C. By:r_ Thomas E. Brenner, Esquire Date: November 9, 2005 ? C ro ?-? 1 GI IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, V. D.L. HEIGES ELECTRICAL SERVICES, INC. and LEWIS R. SUNKEL and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. CIVIL ACTION NO: 2005-03894 CIVIL AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS I, Heidi van Steenburgh, Esquire, counsel for Plaintiffs, Massachusetts Bay Insurance Company subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, being of sound mind and body, hereby make the within Affidavit of Service and aver in support thereof as follows: I am an attorney licensed to practice law in the Commonwealth of Pennsylvania and represent Plaintiffs, relative to the above-captioned matter. 2. Service of the Plaintiff s Writ of Summons was served via personal service by the Sheriff of York County upon the following interested party: D.L. Heiges Electrical Services, Inc. 5 Montasere Court Dillsburg, PA 17019 DOCS_PH 1818818v.1 3. A copy of the Proof of Service from the Sheriff of York County is attached. WHITE AND WILLIAMS, LfLP By, ???CJtGr? Date: i 11 eidi van Steenburgh, Esquire Attorney for Plaintiffs Sworn to and su ribed beforgftic this ' 26qf twpk- k ? DONNA M KOBRYN, Notary Public City of Philadelphia, Phiia County Commission Exnises No rrlner 15.2008 DOCS_PH 1818818v.1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, V. D.L. HEIGES ELECTRICAL SERVICES, INC. CIVIL ACTION NO: 2005-03894 CIVIL and LEWIS R. SUNKEL and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. CERTIFICATE OF SERVICE I hereby certify that a true correct copy of the within Affidavit of Service was mailed by U.S. First Class Mail on this i day of November, 2005 postage prepaid to: Thomas E. Brenner, Esquire Robert A. Lerman, Esquire Goldberg Katzman, P.C. Griffith, Strickler, Lerman, Solymos & Calkins P.O. Box 1268 110 South Northern Way Harrisburg, PA 17108-1268 York, PA 17402 Lewis R. Sunkel Dauphin Associates, Inc. 21 Farm House Lane d/b/a Dauphin Electric Camp Hill, PA 17011 1830 South I9`" Street Harrisburg, PA 17104 WHITE AND WILLIAMS LLP By:?,? C 11 Heidi van Steenburgh, Esquire Attorney for Plaintiff DOCS_PH 1818818v.1 COUNTY OF YORK OFFICE OF THE SHERIFF SE17)7719601E 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE' TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPIES 1 PLAINTIFF/S/ 2. COURU??ngR Massachusetts Bay insurance, et. al. 4 rvPEwORro ooNfPU ivil 3. DEFENDANT/S/ S I CA Writ of Summons/Notice SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED. OR SOLD D .L. Heiges Electrical Services, Inc 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT. NO., CITY. SORO. TWP_ STATE AND ZIP CODE) AT Montasere Court, Dills bur?, PA 17019 _ 7. INDICATE SERVICE' O'PERSONAL O PERSON IN CHARGE OEPUTIZE O CERT. MAIL 01ST CLASS MAIL L3 POSTED U OTHER NOW 4/2/05 20 05 .-_ I, SHERIFF UNTY, PA, do hereby deputize the sheriff of York COUNTY to execute It s-WIritapd make return WefeJi€according to law. This deputization being made at the request and risk of the plaintiff. //na SHERIFF OF VWK COUNTY 8 SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE. O/C Cumberland Please mail return of service to Cumberland County Sheriff. Thank you. ADVANCE !FEE PD BY CUMBERLAND COUNTYSHERIFF NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the pan of such deputy or the sheriff to any plaintiff herein lot any loss, destruction. or removal of any property before sheriff's sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY I ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. DATE FILED HEiDI VAN STEENBURGH ESQ 215-864-7126 7/28/05 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW (This. area must be completed a nofice is to be mailed). CUMBERLAND COUNTY SHERIFF 1 COURTHOUSE SQUARE CARLISLE PA 17013 SPACE BELOW FOR USE OF THE SHEREF - OO NOT WRITE BROW THIS LUG 13. I acknowledge as Indicated the wed 14. DATE RECEIVED 15. Expiration/Hearing Dale or complaint r o above. R. AHRENS 8/3/05 8128/05 16. HOW SERVED: PERSONAL ( RESIDENCE ( POSTED( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BELOW 17. O 1 Ingetry certify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below,) 1e. A TITL F IN NIDUAL -p ED /? LIST f?0ppK4S HERE IF NOT SHOWN ABOVE (Relationship to Defendant) /8 eRta a Segfux 20. Time of Serv C x I;_ tZ.,ya s ?Cie{Yt?? X//Z/ds-r 6,OEr? 21. ATTEMPTSI Date Ti a Mi s Int Dater Time Miles, Int. Dale Time Milea It. Dale Tune Miles IM. Date Time Nglesrlnt. Date Time Miles Int. 1 1 n i. 23. Advance Costs 100.00 24. Semce osts gf 25. N/F 26. Mileage -01 27. Postage 28 Sub To I 35.01 29. Pound 30. Notary ? 31. Surchg. 32. Tot. Casts ?? 33. Costs D V e heck N 117 34. Foreign County Costs 35. Advance Costs 36. Service Costs 37. Notary Can. 38. MseageJPOStage/Not Found 39. Total Costs 40. Costs Due or Refund 2 41H R 41. AFFIRMED and subscribed to before me this c of AUGUct? 04 g. 44. Signature of Dep. Sheri 45 DA / / 7e ^PR_OTHY / NOTARY ?" ?? 46 Signature of ork County Sheri ,r // 47. DAT WILLIAM M HOSE, SHERIF ! /24/05 _ - Notarial Seal Rebecca E. Mease Notary 48. S gnalure of Foreign County Sheri 49. DATE 50. 1 ACKN OF AU Yvl `BMZFMM j1ET d1??433ilfNm AU iMRgi6iANP RN SIGNATURE 51 DATE RECEIVED 1. WHITE - rlg ylVg1T1'dp?{{80(5(g)(pgy)f 414?1RY -Sheriffs Office 4. BLUE- Sherrfis Olfce 1'?? ?? t ? L1 Il <sa _? J (il _' ? ..._ -7 ?C?? ??..? vJ T _ , ?. ?i? ?\ t r s- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, V. D.L. HEIGES ELECTRICAL SERVICES, INC and LEWIS R. SUNKEL and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. CIVIL ACTION NO: 2005-03894 CIVIL AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS I, Heidi van Steenburgh, Esquire, counsel for Plaintiffs, Massachusetts Bay Insurance Company subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, being of sound mind and body, hereby make the within Affidavit of Service and aver in support thereof as follows: I am an attorney licensed to practice law in the Commonwealth of Pennsylvania and represent Plaintiffs, relative to the above-captioned matter. 2. Service of the Plaintiff's Writ of Summons was served via personal service by the Sheriff of Dauphin County upon the following interested party: Dauphin Associates, Inc. d/bla Dauphin Electric 1830 South 19`h Street Harrisburg, PA 17104 DOCS_PH 1818780v.1 A copy of the Proof of Service from the Sheriff of Dauphin County is attached. WHITE AND WILLIAMS, LLP By 1 `? ?/n?CS? ?'t Cl Date: Heidi van Steenburgh, Esquire Attorney for Plaintiffs Sworn to and sub bbcd be? c me this /j , I fIX1 1( ?1?? L CI 70NNA M KOBRYN, Notary Public City of Philadelphia, Phila. County DOCS_PH 1818780v.1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, V. D.L. HEIGES ELECTRICAL SERVICES, INC and LEWIS R. SUNKEL and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. CIVIL ACTION NO: 2005-03894 CIVIL CERTIFICATE OF SERVICE I hereby certify that a true correct copy of the within Affidavit of Service was mailed by U.S. First Class Mail on this 41 day of November, 2005 postage prepaid to: Thomas E. Brenner, Esquire Robert A. Lerman, Esquire Goldberg Katzman, P.C. Griffith, Strickler, Lerman, Solymos & Calkins P.O. Box 1268 110 South Northern Way Harrisburg, PA 17108-1268 Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 York, PA 17402 Dauphin Associates, Inc. d/b/a Dauphin Electric 1830 South 19`h Street Harrisburg, PA 17104 WHITE AND WILLIAMS LLP Heidi van Steenburgh, Esquire Attorney for Plaintiff DOCS_PH 1818780v.1 lA f ficQ of f4je ?*4Pxiff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania MASSACHUSETTS BAY INSURANCE COMPANY vs County of Dauphin DAUPHIN ASSOCIATES, INC. D/B/A DAUPHIN Sheriff's Return No. 1384-T - - -2005 OTHER COUNTY NO. 3894 CIVIL 2005 NOW:August 5, 2005 at 1:00PM served the within WRIT OF SUMMONS upon DAUPHIN ASSOCIATES, INC. D/B/A DAUPHIN by personally handing ELECTRIC to BOB TWOMEY MANAGER 1 true attested copy(ies) of the original WRIT OF SUMMONS and making known to him/her the contents thereof at 1830 SOUTH 19TH ST HARRISBURG, PA 17104-0000 Sworn and subscribed to before me this 9TH day of AUGUST, 2005 NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2006 So Answers, k ,Sheriff of Dauphin County, Pa. By Deputy Sheriff Sheriff's Costs:$26.25 PD 08/04/2005 RCPT NO 209358 SL ? ? ? r`? t i cJ• .,1 4.- _ _ ,-- ?? ?? ?4.; t !-^ G, ?") C? :G .?_. ? i IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, V. D.L. HEIGES ELECTRICAL SERVICES, INC and LEWIS R. SLJNKEL and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. CIVIL ACTION NO: 2005-03894 CIVIL AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS I, Heidi van Steenburgh, Esquire, counsel for Plaintiffs, Massachusetts Bay Insurance Company subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, being of sound mind and body, hereby make the within Affidavit of Service and aver in support thereof as follows: I am an attorney licensed to practice law in the Commonwealth of Pennsylvania and represent Plaintiffs, relative to the above-captioned matter. Service of the Plaintiff's Writ of Summons was served via personal service by the Sheriff of York County upon the following interested party: Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 DOCS_PH 1818821v.1 3. A copy of the Proof of Service from the Sheriff of York County is attached. WHITE AND WILLIAMS, LLP By t"Aa&a g Date: eidi van Steenburgh, Esquire Attorney for Plaintiffs Sworn to and sup ribed befo?elme this,) ay of J??l r J?3 A . i r1 JvNNA M. KOBRYN, Notary Public City of Philadelphia. Phila County ommission Expires November 15. DOCS_PH 181882]v.1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, v. D.L. HEIGES ELECTRICAL SERVICES, INC. and LEWIS R. SUNKEL and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. CIVIL ACTION NO: 2005-03894 CIVIL CERTIFICATE OF SERVICE I hereby certify that a true correct copy of the within Affidavit of Service was mailed by U.S. First Class Mail on this day of November, 2005 postage prepaid to: Thomas E. Brenner, Esquire Robert A. Lerman, Esquire Goldberg Katzman, P.C. Griffith, Strickler, Lerman, Solymos & Calkins P.O. Box 1268 110 South Northern Way Harrisburg, PA 17108-1268 York, PA 17402 Lewis R. Sunkel Dauphin Associates, Inc. 21 Farm House Lane d/b/a Dauphin Electric Camp Hill, PA 17011 1830 South 19`h Street Harrisburg, PA 17104 WHITE AND WILLIAMS LLP Heidi van Steenburgh, Esquire Attorney for Plaintiff DOCS_PH 1818821v.1 COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 SERVICE CALL (717) 771-9601 SHERIFF SERVICE INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPIES 1. PLAINTIFF/S/ _ ,.......?........?.. Massachusetts Bay Insurance Company 3. DEFENDANT/S/ D.L. Heiges Electrical Services Inc et al 4. TYPE OF WRIT OR Writ of Suflmons, rpi55 k SERE o NAmc UI- INUIVIUUAL, GUMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED. OR SOLD Lewis R. Sunkel 6. ADDRESS (STREET OR RFO WITH BOX NUMBER. APT NO., CITY, BORO. TWP. STATE AND ZIP CODE) AT 21 Farm House Lane Camp Hill, PA 17011 7. INDICATE SERVICE'. U PERSONAL L7 PERSON IN CHARGE M DEPUTIZE illiWT V1I%nr1 U 1ST CLASS MAIL U POSTED U OTHER NOW September 7 20g_5 I, SHERIFF OF 3011W COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute th ake return thgr ccording to law. This deputization being made at the request and risk of the plaintiff. o? 8. OTHER INFORMATION THAT SERVICE (9 Ld ?u ,'Qt ? mail return of service to Cumberland County Sheriff. Thank you. I I n r n NOTE: ONLY APPLICABLE ON WRIT F EXEC OON: N.B. WAIVER OF A IRAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9- TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 1(11 DATE FILED G?LK?-" .:::? t,1 A^-4 'V-7 ,-nY? TO NAME Seca area must be completed it notice is to be 13. 1 acknowledge receipt of the writ ?(/ ? /? 1 TE j?EIVED 15 Es iration/Hearing jlate or complaint as Indicated above. -U A411 CO. ? `V -71C In 4 inliq 23. Advance Costs 24. Service Costs 25. N/F 26. Mileage 27. Postage 28S.1, Total 29. Pound 30 Notary 31. Surchg. 32. Ta. Cos1s 33 Due or Refuns eck tog 7,Z 1 s 1,1. 7) . V0 F U. Foreign County Cos 35. Advance Costs 36 Service Costs 37. Notary Cert. 8. Maea Postage/N Found 39. Total Costs 40? Costs Due or Refund 41. AFFIRMED and subscribed to before a this j f h 10 O ANSWERS - 42. tlaY ofd13. ?- P ad. Signs re of Dep. riff 44 d5. DAT?j i TARY 46. Signs re of York 47. DATE NOTARIAL SEAL L Count' hens ISA L. BOWMAN. NOTARY PU CITY O BLIC ' l ,?t_t'. r' it lib - iZ' rr / G F YORK YOR M 48 Si nat re of Forei n K COUNTY Y COMMISSION g u g C ff 49 DATE EXPIRE -Silit 'a ount' Sheri ?OF AUTHORIZED ISSUING AUTMORI on rrancia namnn??nc 151 UATERECEIVED 1. WHITE - han.o lg Authority 2. PINK - Attorney 3. CANARY Sheriffs Office 4. BLUE - Shenfrs Office 16. HOW SERVED: PERSONAL( Ir RESIDENCE () POSTED( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BELOW c? O ? - -n 2?? ? ?;,-__ i l ? ?_` s-' ;_. _ -s5 - ?; {?. - ? :, C-7 '% ?. W IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, V. D.L. HEIGES ELECTRICAL SERVICES, INC. and LEWIS R. SUNKEL and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. CIVIL ACTION NO: 2005-03894 CIVIL AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS I, Heidi van Steenburgh, Esquire, counsel for Plaintiffs, Massachusetts Bay Insurance Company subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, being of sound mind and body, hereby make the within Affidavit of Service and aver in support thereof as follows: I am an attorney licensed to practice law in the Commonwealth of Pennsylvania and represent Plaintiffs, relative to the above-captioned matter. 2. Service of the Plaintiff's Writ of Summons was served via personal service by the Sheriff of Perry County upon the following interested party: Comfort Tech, Inc. 1010 Flower Lane Marysville, PA 17053 DOCS_PH 1818757v.1 A copy of the Proof of Service from the Sheriff of Perry County is attached. WHITE AND WILLIAMS, LLP n i 1 By: 1, ( (, Date: I l L eidi van Steenburgh, Esquire Attorney for Plaintiffs Sworn to and subAcribed beforefyne this/ ! /bay of /*"Jat ? ?`111ember 752008 DOCS_PH 1818757v.1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, v. D.L. HEIGES ELECTRICAL SERVICES, INC. and LEWIS R. SUNKEL and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. CIVIL ACTION NO: 2005-03894 CIVIL CERTIFICATE OF SERVICE I hereby certify that a true correct copy of the within Affidavit of Service was mailed by U.S. Jt First Class Mail on this day of November, 2005 postage prepaid to: Thomas E. Brenner, Esquire Robert A. Lerman, Esquire Goldberg Katzman, P.C. Griffith, Strickler, Lerman, Solymos & Calkins P.O. Box 1268 110 South Northern Way Harrisburg, PA 17108-1268 York, PA 17402 Lewis R. Sunkel Dauphin Associates, Inc. 21 Farm House Lane d/b/a Dauphin Electric Camp Hill, PA 17011 1830 South 19`h Street Harrisburg, PA 17104 WHITE AND WILLIAMS LLP i? ???) r.?h .1 ByJ 414 It s l1eiiddi van Steenburgh, Esquire Attorney for Plaintiff DOCS_PH 1818757v.1 In The Court of Common Pleas of Cumberland County, Pennsylvania Massachusetts Bay Insurance, et. al. VS D.L. Heiges Electrical, et. al. Serve: Comfort Tech, Inc. No. 2005-3894 Civil Now, 8/2 /05 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Perry County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, August 9, 20 o5 , at3.1 0 o'clock p M. served the within Writ of Summons upon Comfort Tech, Inc at 1010 Flowers Lane (Rye Township) Marysville, PA 17053 by handing to Eric Hicks, Job Co-ordinator-Person in CH a TRUE A ATTESTED copy of the original Writ of Summons and made known to Him the contents thereof. So answers, Brady T. Cramer AnZ4-1?--e ?. Deputy I Sheriff/of Perry County, PA COSTS Sworn and subscribed before SERVICE $ me this &N.A day of '2005- MILEAGE -, a a n0 ` n _ AFFIDAVIT rusuc ?J l -' 1 .. (J ' ( F. f'll ?? ?' _ ? l ; _ _ . _ ? (? ? ? } ~ `? ( , ? ? f? .L ?i THOMAS, THOMAS & HAFER, LLP by: Brooks R. Foland, Esquire I. D. No. 70102 305 North Front Street 6`h Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 MASSACHUSETTS BAY INSURANCE COMPANY, AS SUBROGEE OF THE FITNESS COMPANY, INC. d/b/a ALPHA RACQUETBALL AND FITNESS CLUB, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC AND COMFORT TECH, INC., Defendant TO THE PROTHONOTARY: Attorneys for Dauphin Associates, Inc. a/Wa d/b/a Dauphin Electric IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-03894 CIVIL JURY TRIAL DEMANDED ENTRY OF APPEARANCE Please enter our appearance on behalf of Defendant Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric in the above matter. Respectfully submitted, LLP by: Brooks R. Fola utre I.D. No. 70102 305 North Front Street, 6th F' POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 391136.1 CERTIFICATE OF SERVICE AND NOW, this -aay of l +?1? , 200. I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Heidi van Steenburgh, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 Coleen M. Polek r_o n :7 _... ,._ - .?'? I a ?.? i f: ? ?. lJ.1 I,_ 1 i i -??t??, 'i , _.,. i'J _ .L- `'7 L" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, No. 2005-03894 CIVIL COMPANY, Plaintiff, VS. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT COMFORT TECH. INC. TO PLAINTIFF'S COMPLAINT AND, NOW, comes Defendant Comfort Tech, hic. by and through its counsel, GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, and files Preliminary Objections and in support thereof avers as follows: 1. Plaintiff filed a Complaint against the above-captioned Defendant on October 20, 2005. Attached hereto is a true and correct copy of Plaintiff's Complaint marked as Exhibit A. 2. Paragraphs 52 and 61 of Plaintiff's Complaint allege negligence of Defendant Comfort Tech, Inc., which consisted of "but are not limited to", "otherwise failing to perform their work in a good and workmanlike manner", and "otherwise failing to perform their work in a good and workmanlike manner" to certain allegations. 3. The language of Paragraph 52 of Plaintiffs Complaint referenced as "but are not limited to", Paragraph 52(o) specifically "otherwise failing to perform their work in a good and workmanlike manner"; and Paragraph 61 specifically "otherwise failing to perform their work in a good and workmanlike manner" must be stricken inasmuch as they contain vague and unspecific averments of alleged wrongdoing which fails to apprize the moving Defendant of the claims against it. 4. The language of Paragraph 52 of Plaintiff's Complaint referenced as "but are not limited to", Paragraph 52(0) specifically "otherwise failing to perform their work in a good and workmanlike manner"; and Paragraph 61 specifically "otherwise failing to perform their work in a good and workmanlike manner" does not conform with the requirements of Pennsylvania law regarding specific factual averments and is contrary to the Pennsylvania Supreme Court decision of Connor v. Allegheny General Hospital, 501 Pa. 306, 561 A.2d 600 (1983). 5. On November 11, 2005, defense counsel requested Plaintiff's counsel to contact him regarding withdrawing the particular language referenced above and provided a Stipulation to withdraw the particular language referenced above with prejudice. A copy of defense counsel's correspondence to Plaintiff s counsel, as well as the Stipulation, is attached hereto as Exhibit B. 6. Defense counsel has not received an indication that Plaintiffs counsel will agree to withdraw the language or insist on keeping the language in Plaintiffs Complaint. WHEREFORE, Defendant Comfort Tech, Inc. respectfully requests this Honorable Court to dismiss with prejudice the language of Paragraph 52 of Plaintiff s Complaint referenced as "but are not limited to", Paragraph 52(0) specifically "otherwise failing to perform their work in a good and workmanlike manner"; and Paragraph 61 specifically "otherwise failing to perform their work in a good and workmanlike manner". GRIFFFTH, STRICKLER, LERMAN, S,gLI MOS & CALKINS By.. HOMAS B. SPONAUGLE, ESQUIRE Supreme Court I.D. #64584 Attorney for Defendant Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 ? ?? ? ?x?`' Nnv on 2nn5 3:24pN HP inSFRJET 92nn Oct 31 OS 10:59a Corn Fort Tech Inc 7171 957-4883 P.3 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMP N-Y. as subrogee of The Fitness Company, Inc. d b/a Alpha Racquetball and Fitness Club, 440 Lincoln Street Worcester, Massachusetts 01653 V. D.L. ciEIGES ELECTRICAL SERVICES, INC. 5 Montasere Court Dillshurg, Pennsylvania 17019 and LEWIS R. SUNKEL 21 Farm House Lane Camp Hill, Pennsylvania 17011 and DAUPHIN ASSOCIATES, INC. db/a DAUPHIN ELECTRIC 1830 South 19" Street Hamsburg, PA 17104 and COMFORT TECH, INC. 1010 Flowers Lane Marvsvillc. PA 17053 CIVIL ACTION NO: 2005-03894 CML NOTICE TO DEFEND You have been sued in court. If you wish N drferd against me clams Sat forth in the fallowing pages, you Cost mac tenon within N cnty (20) days alter this complaint and notice arc served, by mitring a wnuen appamnce pmrondly or by attorney and filing in writing wish the cnrl year defenses or objection to the claims set forth apinst you. You are wormed that if no foil 1. du sC the cut not, pri without you and a judgment may be entered against you by fore court without further notice for any money claimed in the complaint or for any rthe- dtim a relief rcqucstcd by the alainu R. You may lase money or pmpeny or other ngh's imporam o you. YOU SHOULD TAKE -TICS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, 00 TO OR TELEPHONE THE OFFICE SET FORTH 3ELOW TO F:NO OUT WHERE. YOU CAN GET LEGAL HELP, lu uyer Referral Si of ;ore Cu mbedand Caun:y Bar Assuciabon Cumberland County Ear Ars=.um 32 South Bedford Stttet Crrlisle, PA 17013 Tctghnnc (]17)243-3166 Le hart dertundado s usSW en I: corm Si aged gcirti deRn last de e,1aa demands, upunts; m Io p5gims s.g.,eoln, u51ed Il:c: ,cinte (20) dim de pleu el onair de la (echo de to dcmanda y It noul 1 aacion Hat, facts Merl. ma comparesencie esprit. o cn persona a :on all abogndo y enncg.r a It tern, en foam aserin C,, dcicnss, o sus objeciones a In demandm an corona de to penem. Sea avint r que si tined no se d0trec, la Cone boneril m rsidss y puede cool nruf a demtnda to contra soya sin prev:o nriso o nolificacion. Ad >YIS, Its core Cued. dridir a favor del dennituD lp y re,uierc qt r usltd eurtpl. con tech. Is provisionts de est. demands. Uslc I puede I dinero o sus propiedades u Ines dercchos mpmtan r, I .sled. LLEVE FSTA DEMANDA A ON AM "'ADO MIMED1A7AMENTE. SI NO TIENE ABOGADU 0 SI NO (:ENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, V'/'(A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE- ENCUENTRA ESCRITA AHAfO PARA AVERIOUAR DONDE Sr PI;FDF. CONSEGUIR ASIS? CNCIA LEGAL. Lawyer Referral Servi:e of the Cumberland County Bar Assn:Inton Cumberland County Bar A,sovitim 32 S.C. Eedrmd Sr:( Carlisle, PA 17017 p.4 DOCS FH 17679440 Nov 03 2005 3:24PM HP IRSER,IFT 3700 p.5 t , Oct. It 05 111: 5 9 a Comrort Tech Inc WHITE AND WILLIAMS LLP Heidi van Steenburgh, Esquire ?cnnsylvania Dar I.D. 83186 1800 One Liberty Place Philadelphia, PA 19103 215-S64-7126 MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. dlb,ra Alpha Racquetball and Fitness Club, Plaintiff v- D.L. I IEIGES ELECTRICAL SERVICES, INC., LEWIS R. ST IN EL, DAUPIIIN ASSOCIATES, INC. a&a d b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Dcfcndants. COMPLAINT COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2005-03994 CiVII, JURY TRIAL DEMANDED !". p.4 , Plaintiff Massachusetts Bay Insurance Company, as subrogee of The Fitness Compare, Inc. d/b/a Alpha Racquetball and Fitness Clubby and through its counsel, White and Williams LLP, hereby demands judgment against Defendants D.L Heiges Electrical Services, Inc., Lev i..s R. Sunkel, Dauphin Associates, Inc., aWa dtVa Dauphin Electric and Comfort Tech, Inc. anc in support thereof avers as follows: 1. Plaintiff Massachusetts Bay Insurance Company is a New Hampshire corporal ion with its principal place of business located at 440 Lincoln Street, Worcester, Massacbusetts. Upon information and belief, Defendant D.L. Heiges Electrical Services, Inc. i s a Pennsvlvania corporation with its principal place of business located at 5 Montasere Court, Dillsburg, Pennsylvania. 3. Upon information and belief, Defendant Lewis R. Sunkel is an adult individual residing nt 21 Farm House Lane, Camp Hill, Pennsylvania. 7171 957-4883 Attorneys far Massachusetts Bay hnsurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball are' Fitness Club DOCS Ptl ISE9009v.1 Nnv ?3 2nns 3:24PM HP I_F9FRJFT 3200 p.6 s , Oct 3; 05 10:59a UemFort TecF Inc 7171 957-4083 4. Upon information and belie:, Defendant Dauphin Associates, Inc. a/kla d/b/a Dauphin Electric is a Pennsylvania corporation with its principal place of business located at 1830 South 19's Street, Harrisburg, Pennsylvania. 5. Upon information and belief, Defendant Comfort Tech, Inc. is a Pennsylvania corporation with its principal place of business located at 1010 Flowers Lane, Marysville, Pennsylvania. 6. Plaintiff issued insurance policy number ZDN 6867123 to The Fitness Company, Inc., d/b/a Alpha Racquetball and Fitness Club (hereinafter "Plaintiff's insured"): covering its business personal property located at 4732 Old Gettysburg Road, Mechanicsburg, Pennsylvar ia. 7. Plaintiff s insured operated a health and fitness facility at 4732 Old Getysbure Road (hereinafter the "subject premises"). 8. In or about Summer, 2001, Plaintiff's insured hired and/or retained Lewis Sun];el to service andior upgrade the electrical system and components at the subject premises. 9. Defendant Sunkel worked at the subject premises until December, 2001. 10. Upon information and belief, Plaintiffs insured hired and/retained Dauphin Associates, Inc. a/lda d/b/a Dauphin Electric (hereinafter "Dauphin") to work at the subject premises, During such work, Dauphin had reason to make electrical connections and/or adjustments. 11, Upon information and belief, Plaintiffs insured hired and/or retained Comfort Tech to work at the subject premises. During such work, Comfort Tech had reason to make electrical connections and,'or adjustments. 12. Thereafter, in or about July, 2003, circuit breakers at the subject premises beg: on tripping. P.5 -2- UOCS PH 1589008'.1 NUV tl;i rllllti ;i: r9 FM HH I. H'i F. K.1tl 3r0O 5 , Oct 31 05 :0:59a comfort tech Inc 7171 957-4883 13. Plaintiff s insured hired and/or retained Defendant D.L. Heiges Electrical Services (hereinafter "Heiges Electrical') to service the electrical system. 13 Heiges Electrical serviced the electrical system and component parts at the subject premises en several occasions in July, 2003 15. On or about July 30, 2003, a devastating fire occurred at the subject premises causing substantial destruction to Plaintiffs insured's business personal property. 16. Sunkcl was negligent in failing to properly service and/or upgrade the electrictll system and components at the subject premises and such negligence caused a fire and subseqi tent property damage. 17. Dauphin was negligent in failing to properly service electrical components at VC.e subject premises and such negligence caused a fire and subsequent property damage. 18. Comrort Tech was negligent in failing to properly service electrical componen Is at Chc subject premises and such negligence caused a fire and subsequent property damage. 19. Heiges Electrical was negligent in failing to properly service and/or repair the electrical system and components at the subject premises and such negligence caused a fire an 1 subsequent property damage, 20. As a direct and proximate result of the acts and/or omissions of Defendants, th t: resulting fire caused extensive damage to Plaintiff s insured's business personal property, rep for expenses, business interruption losses and incidental and consequential damages. 21. Massachusetts Bay, pursuant to the terms of the insurance agreement, paid its insured in excess of $100,000 for damages to its insured's business personal property. P.6 P. I -3- DOCS PH 1599008'.1 NOV 03 2005 3:25PM NP LRSERJET 3200 t , Oct 31 05 10:59a Comfort Tech [no 717) 957-4883 P.7 22. As a result of the payments by Massachusetts Bay to its insured, Massachusetts Bay is now subrogated to the rights of its insured to recover for the damages caused by the av! and/or omissions of Defendants. 23. Massachusetts Bay, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, now seeks recovery from Defendants. FIRST COUNT - NEGLIGENCE Plaintiff v. Defendant D.L. Beiges Electrical Services 24. Plaintiff hereby incorporates the allegations contained in the foregoing paragra )hs as though same were fully set forth at length herein. 25. Heiges Electrical owed a duty to Plaintiffs insured to perform its duties in a careful and proper manner so as not to cause harm to the subject premises. 26 The above mentioned fire and resulting damages were caused by and resulted from the negligent, grossly negligent, careless and reckless acts and/or omissions of Heiges Electrical by and through its agents, servants, employees, representatives, subcontractors, subagents and/or workmen, acting within die course and scope of their authority and employment. Said acts and/or omissions included, but are not Enuted to, the following. a. failing to properly and adequately service the electrical system and components at the subject premises; b. failing to properly and adequately address the cause of the tripping circuit breakers at the subject premises: C. failing to advise Plaintiff s insured that a serious and dangerous condition was created by the electrical system and components at the subject premises, I failine to identify and correct a serious electrical problem at the subject premises; e_ failing to recognize and/or correct the danger created by the bypassed hgh limit switch at the subject premises; P.a -4- DOCS Ptt 1589008. 1 Nov n3 2nn5 3:25PM HP I.RSFR.IFT 3200 p.9 Oct ul 05 11:00A Comfort Tech Inc 7171 957-4883 P.8 f. failing to recognize that the electrical % iriog at the subject premises ha i inadequate and/or improper insulation; g. failing to wam Plaintiff's insured regarding the use of w :ring with inadecuate and/or improper insulation; h. failing to red flag and/or remove from operation electrical wiring and systems that posed and/or created a risk of fire; i. failing to recognize a hazard of fire; j. failing to properly and adequately hire, instruct and/or supervise its agi nts, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the elects ic:al system and components; k. failing to take reasonable steps to ensure that its agents, servants, employees, representatives, subcontractors, subagents and/or workmen were observing applicable safety standards and procedures while servicing and/or repairing the electrical system and components at the subject premises; failing to take reasonable steps to ensure that the electrical system and components were safely and properly functioning; M. failing to warn Plaintiffs insured of the hazards associated with an improperly functioning electrical system; n. failing to inspect, test and/or otherwise ensure that the electrical systen and components were properly and safely functioning; and o. otherwise failing to perform its work in a good and workmanlike maar er. 27. As a direct acid proximate result of the negligent, grossly negligent, careless, reckless and'or other liability producing conduct of Heiges Electrical, Plaintiffs insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Heiges Electrical. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of II r: Fitness Company, Inc. dlhla Alpha Racquetball and Fitness Club, hereby demands judgment -5- Docs P}{ 1569008• I N0V 113 21105 3: 2FPN HP I RSER JET 3200 F' t Oct 31 05 11:00a Comfort Tech Inc 71,71 957-4893 P.9 against all Defendants in an amount in excess of $100,000, plus interest, attorneys fees, cost; and such other and further relief as this Court deems appropriate. SECOND COUNT-BREACH OF CONTRACT Plaintiff v. Defendant D.L. Heiges Electrical Services 28. Plaintiff hereby incorporates the allegations contained in the foregoing paragna*s as though same were fully set forth at length herein. 29 In July, 2003, Plaintiff s insured and Heiges Electrical entered into as agreem( r1t whereby Heiges Electrical would service and/or repair the electrical system and components d the subject premises. 30. Pursuant to the terms of the agreement, Heiges Electrical was responsible foT servicing and/or repairing the electrical system and components in a safe and proper manner. 31. Heiges Electrical breached its agreement with Plaintiffs insured by failing to properly service and/or repair the electrical system and components at the subject premises, failing to properly and adequately supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen and failing 10 provide personnel who would perforn their duties in a careful and proper manner. 32, As a direct and proximate result of the breach of contract by Ifeiges Electrical, Plaintiffs insured sustained damage to its business personal property, repair expenses, busing::: interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured an, I now demands judpnent against Beiges Electrical. WHEREFORE, Plaintiff, Massachusetts Say Insurance Company, as subrogee of The Fitness Company, Inc. d'bla Alpha Racquetball and Fitness Club, hereby demands judgment -6- 0005 FH 1599008V 1 NPV 03 2005 3:2GPM HP LHSERJET 3200 P.11 Oct 31 OS 11:00a Comfort Tech Inc 7171 9S7-4883 P.10 against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such otbcr and further relief as t s Court deems appropriate. 33. Plaintiff hereby incorporates the allegations contained in the foregoing paragri,phs a; though same were fully set forth at length herein. 34. At the time Beiges Electrical undertook to perform its services at the subject premises, it was under an express anclor implied obligation to perform such services in a goc d and workmanlike manner. 35. Beiges Electrical breached its express and/or implied warranty that its service; would be performed in a good and workmanlike manner by failing to properly and adequatel} service and/or repair the electrical system and components at the subject premises, failing to recognize a hazard of fire and failing to properly and adequately hire, instruct and/or supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen ir. the proper methods of servicing auftr repairing the electrical system and components and failir„ to provide personnel who would perform their duties in a careful and proper manner so as to nor. cause harm to the subject premises. 36. As a direct and proximate result of the breach of its express and/or implied warranty by Hciges Electrical, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential dam ngcs in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Heiges Electrical. NWIRREFORE, Plaintiff, Massachusetts Bay Laurance Company, as subrogee of 7'he Fitness Company, Inc, &/ a Alpha Racquetball and Fitness Club, hereby demands judgmer -7- DOCS PH 1589008x.1 NOV 03 2005 3:27P11 HP LRSER.IET 3200 p.12 Oct 3: 05 11:00a Comfort Tech Inc 717) 957-4893 p.11 against all Defendants in an amour: in excess of $100,000, plus interest, attorney's fees, cost and such other and further :cticf as this Court deems appropriate. FOURTH COUNT-NEGLIGENCE Plaintiff v. Defendant Lewis Sunkel 3T Plaintiff hereby incorporates the allegations contained in the foregoing paragnmhs as though same were fully set forth at length herein. 38, Lewis Sunkel owed a duty to Plaintiff s insured to perform his duties in a careful and proper manner so as not to cause harm to the subject premises. 39. The above mentioned fire and resulting damages were caused by and resulted from the negligent, grossly negligent, careless and reckless acts and/or omissions of Sunkel, acting by and through his agents, servants, employees, representatives, subcontractors, 5ubag::nts and/or workmen, acting within the course and scope of their authority and employment. Said acts and/or omissions included, but are not limited to, the following: a. failing to properly and adequately install and service the electrical sysi tan and components at the subject premises; b. failing to properly and adequately upgrade the electrical system and components at the subject premises; c failing to follow the sauna manufacturer's instructions regarding the h,pe of electrical wiring to be used; d. failing to use electrical wire with the proper insulation during this wor'E-., e. bypassing critical electrical safety features; f. failing to correct a deficient and dangerous condition created by bypassing the high limit switch; g. failing to recognize that the electrical wiring had improper and/or inadequate insulation; h. failing to warn Plaintiffs insured regarding the use of wiring widt improper and/or inadequate insulation; i. failing to recognize a hazard of fire; -g- DUCS PH 1589COHv.t Nnv n3 2nn5 3:27PM HP IRSFRJFT 3200 P.13 Oct 31 05 11:01a Comfort Tech Inc 717) 957-4903 j. failing to properly and adequately hire, instruct and/or supervise his agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system and components; kC failing to take reasonable steps to ensure that his agents, servants, employees, representatives, subcontractors, subagents and/or workmer were observing applicable safety standards and procedures while servi :ing and/or repairing the electrical system and components at the subject premises; 1. failing to take reasonable steps to ensure that the electrical system and components were safely and properly functioning; m. failing to warn Plaintiffs insured of the hazards associated with an improperly functioning electrical system; R. failing to inspect, test and/or otherwise ensure that the electrical syster 1 and components were properly and safely functioning; and o, otherwise failing to perform his work in a good and workmanlike man,aer. 40. As a direct and proximate result of the negligent, grossly negligent, careless, reckless and/or other liability producing conduct of Sunkel, Plaintiff's insured sustained dam age to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Lewis Sunkel. NVHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of T u: Fitness Company, Inc. dlb,a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, cosl!: and such other and further relief as this Court deems appropriate. P.12 -9- DOCg PH 158900g+.1 MOV 03 2005 3:27PM HP LRSERJET 3200 Oct 21 05 11:02a Camfort Tech Inc p.14 7177 957-4883 p.14 SIXTH COUNT - BREACH OF EXPRESS AND/OR IMPLIED WARRANTY Plaintiff v. Defendant Lewis Suakel 46. Plaintiff hereby ncorporates the allegations contained in tl:e foregoing paragr2lih5 as though same were fully set font at length herein. 47. At the time Lewis Sunkel undertook to perform his services at the subject premises, he was under an express and/or implied obligation to perform such services in a good and workmanlike manner. 48 Sunkel breached the express and/or implied warranty that his services would be performed in a good and workmanlike manner by failing to properly and adequately upgrade service and/or repair the electrical system and components at the subject premises, failing to recognize a hazard of fire and failing to properly and adequatety hire, instruct and/or supervise. its agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system and components, failing to provide personnel who would perform their duties in a careful and proper manner so as to not cause harm to the subject premises. 49. As a direct and proximate result of the breach ofbis express and/or implied warranty by Sunkel, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of 3100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Sunkcl, Dauphin Associates, Dauphin and/or Comfort Tech, Inc. WHEREFORE, Plaintiff, Massachusetts Day Insurance Company, as subrogee of The fitness Company, Inc, d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment DOCS eH I589008? 1 NOv a3 2005 9:28PM HP LFSFR.7FT 3200 P.15 Oct 31 05 11:01a Comfort Tech Inc FIFTH COUNT-BREACH OF CONTRACT Plaintiff v. Defendant Lewis Sunkel 7171 957-4893 P.13 41. Plaintiff hereby incorporates the allegations contained in the foregoing par -a -era dis zs though same were filly set forth at length herein. 42. In 1999 or 2000, Plaintiffs insured and Lewis Sunkel entered into an agreema it whereby Sunkel would upgrade, service and/or repair the electrical system and components at the subject premises 43. Pursuant to the terms of the agreement, Sunkel was responsible for upgrading, servicing and/or repairing the electrical system and components in it safe and proper manner. 44. Sunkel breached his agreement with Plaintiffs insured by failing to properly upgrade, service and/or repair the electrical system and components at the subject premises, failing to property and adequately supen isc his agents, servants, employees, representatives, subcontractors, subagents and/or workmen and failing to provide personnel who would perform their duties in a careful and proper manner. 45. As a direct arc proximate result of the breach of contract by Sunkel, Plaintiff) insured sustained damage to its business personal property, repair expenses, business interrupiion losses and incidental and consequential damages in an amount in excess of $100,000, for whic5 Plaintiff has become subrogated by virtue of its payment to its insured and now demands Judgment against Lewis Sunkel. %WREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogce of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, coW and such other and further re'ief as this Court deems appropriate. DOCS PH 1589004. ,1 NOV 03 2005 3:28PM HP LRSERJET 3200 p.16 [let 31 OS 11:02a Comrort Tech Inc 7171 957-40B3 p.15 against all Defendant-, in an amount in excess of $100,000, plus interest, attorney's fees, cost: and such other and further relief as this Court deerns appropriate. SEVENTH COUNT-NEGLIGENCE Plaintiff Y. Defendants Dauphin Associates Inc aWa d/b/a Dauphin Electric and Comfort Tech, Inc. 50. Plaintiff hereby incorporates the allegations contained in the foregoing paragra phs as though same were fully set forth at length herein. 51. Dauphin and CorrSort Tech owed a duty to Plaintiff s insured to perform their duties in a carefil and proper manner so as not to cause harm to the subject premises. 52. The above mentioned fire and resulting damages were caused by and resulted from the negligent, grossly negligent, careless and reckless acts and/or omissions of Dauphin and Comfort Tech, acting by and through their agents, servants, employees, representatives, subcontractors, subagents and/or workmen, acting within the course and scope of their authority and employment. Said acts and/or omissions included, but are not limited to, the following: a, failing to properly and adequately service the electrical system, its components and other electrical devices at the subject premises; b. failing to follow the sauna manufacturer's instructions regarding the typ c. of electrical wiling to be used; C. failing to make proper and adequate electrical connections during its work; d. failing to use electrical wire with the proper insulation during their worF C' bypassing critical electrical safety features; f. failing to correct a deficient and dangerous condition created by bypassi ng the high limit switch; g. failing to recognize that the electrical wiring had improper and/or inadequate insulation; h. failing to warn plaintiff s insured regarding the use of wiring with improper and/or inadequate insulation; i. failing to recognize a hazard of fire; _12_ DOCS PH 1599DO9v.I NOV 03 2005 3:29PM HP LRSERJET 3200 P•17 Oct 31 OS 1::02a Comfort Tech Inc 7171 957-48[33 P.1G j. failing to properly and adequately hire, instruct and/or supervise their agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system, its components and other electrical devices; < failing to take reasonable steps to ensure that their agents, servants, employees, representatives, subcontractors, subagents and/or workmen were observing applicable safety standards atd procedures while servicing and/or repairing the electrical system, its components and other electrical devices at the subject premises; 1. failing to take reasonable steps to ensure that the electrical system, its components and other electrical devices were safely and properly functioning; M. failing to warn Plaintiffs insured of the hazards associated with an improperly functioning electrical system or electrical devices; n. failing to inspect, test and/or otherwise ensure that the electrical system. its components and other electrical devices were properly and safely functioning; and o. otherwise failing to perform their work in a good and workmanlike manner. 53. As a direct and proximate result of the negligent, grossly negligent, careless, reckless andlcr other liability producing conduct of Dauphin and Comfort Tech, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interrupti on losses and incidental and consequential damages in an amount in excess of $100,000, for wbic 1 Plainriffhas become subrogated by virtue of its payment to its insured and now demands judgment against Dauphin and Comfort Tech. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of ne Fitness Company, Inc. &b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. -13- DDCS PH 1599006, .1 NOV n3 P005 3:P9PN HP IASERJFT 3200 P.18 Oct 31 05 11:03a Comfort Lech Inc 7171 957-4883 p.17 54. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 55. Plaintiffs insured and Dauphin and Comfort Tech entered into an agreement whereby Dauphin and Comfort Tech would perform work on the electrical system, its components andlw other electrical devices at the subject premises. 56. Pursuant to the terms of the agreement, Dauphin and Comfort Tech were responsible for servicing and/or repairing the electrical system, its components and/or other electrical devices in a safe and proper manner. 57. As a direct and proximate result of the negligence, gross negligence, carelessn °ss, recklessness and/or other liability producing conduct of Dauphin and Comfort Tech, as more fully set forth herein and incorporated by reference, Dauphin and Comfort Tech breached the r contract with Plaintiffs insured. 58. As a direct and proximate result of the breach of contract by Dauphin and Comfort Tech, Plaintiff s insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amour t in excess of $1 UU,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Lewis Sunkel. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of Tl to Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of 5100,000, plus interest, attorney's fees, cost s, and such other and further rel:ef as this Court deems appropriate. -14- DoCS PH 118900Sv I NOV 03 P005 3:29Pti HP t.FSFR3FT 3200 P.19 Oct 31 05 11:03, Con Fort tech Inc 7171 957-4803 F.18 NINTH COUNT - BREACH OF EXPRESS AND/OR IMPLIED WARRANTY Plaintiff v. Defendants Dauphin Associates, Inc, aAda d/h/a Dauphin Electric and Comfort Tech, Inc. 59. Plaintiff hereby :nco poratcs the allegations contained in the foregoing paragra ['17s as though same were fully set forth at length herein. 60. At the time Dauphin and Comfort Tech undertook to perform their services at t he subject premises, they were under an express and/or implied obligation to perform such servic is in a good and workmanlike manner. 61. As a direct and proximate result of its conduct, as more fully set forth above an i incorporated herein by reference, Dauphin and Comfort Tech breached their express and/or implied warranties that their services would be performed in a good and workmanlike manner y failing to properly and adequately service and/or repair the electrical system, it-, components a; id other electrical devices at the subject premises, failing to recognize a hazard of fire and failing to properly and adequately hire, instruct and/or supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system, its components and other electrical devices, failing to provide personnel who would perfomi their duties in a careful and proper manner so as to not cause harm to the subject premises and otherwise failing to perform their work in a good and workmanlike manner. 62. As a direct and proximate result of the breach of express and/or implied warranties by Dauphin and Comfort Tech, Plaintiffs insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become stbrogated by virtue of its payment to its insured and now demands judgment against Dauphin and Comfort Tech. -15- DOCS PH 1599008v.1 Nov on 2005 3:3oPN HP 1NSERJFT 3200 Oct 31 Ub 11:09a Comfort Tech Inc 7171 957-aBB3 p. 19 N3'HEREFORE, Plaintiff, Massachusetts Bay?nsurance Company, as subrogee ofTh: Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. Respectfully Submitted, WHITE AND WILLIAMS LLP Q ?.l 11Inn'Sek%ay I e@1 vin- Steenburgh, Esquire Attorneys for Plaintiff Dated: -AO-M-05 p.20 -16- DOCS PH 1589008x.1 NOV 03 2005 3:30PM Ort 31 OS 11:04a HP LHSERJET 3200 Comfort Tech Inc 7171 357-4893 VERIFICATION 1, Heidi van Steenburgh, attorney for Massachusetts Bay Insurance Company, verify t11at the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that I am making these statements subject to the penalties of 18 Pa. C. S. § 4904, relating to unswom falsification to authorities. Adi ?? ? ? van Steenburgh Dated: n --()D -()S p.20 p.21 DOCS PH 1589006v.1 NOV 02 Pons 3:3opm HP I.FSERJFT 3200 Oct 31 U5 11:04a Cemfert Tech Inc 717) 957-4093 CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and coreel copy of the foregoing document was served upon all parties listed below by First Class Mail, postage prepaid: Thomas E. Brenner, Esquire Goldberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisbug, PA 17108-1268 Lewis R Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Inc. aWa d(bfa Dauphin Electric 1830 South 19'h Street Harrisburg, PA 17104 Comfort Tech, Inc. 1010 flowers Lane Marysville, PA 17053 p. 21 I V C"Lo/?t1? Heidi van Steenburgh 1 V Dated: lQ--(?Q 'O5 p. cc_ DOCS_PH 1599ODBv.1 ?x????? ? LAW OFFICES GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS ROBERT M. STRICKLER ROBERT A. LERMAN° PETER D. SOLYMOS CHARLES B. CALKINS PAUL G. LUTZ MICHAEL B. SCHEIB* THOMAS B. SPONAUGLE 110 S. NORTHERN WAY YORK, PENNSYLVANIA 17402-3737 TELEPHONE: (717) 757-7602 FAX: (717) 757-3783 EMAIL'. info(aoslsc. com WEBSITE: slsg cm Thomas B. Sponaugle's EMAIL: TSOonaualetaoslsc com ANN MARGARET GRAB KRISTI A. COHN GLENN J. SMITH OF COUNSEL ROBERT H. GRIFFITH MICHAEL P. BIANCHINI oAlso Mer ser MD Bar 'LL.M (Taxation); also Member CT Bar 'Also Member NY and D.C. Bars November 11, 2005 Heidi van Steenburgh, Esquire White and Williams, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Re: Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club v. D.L. Heiges Electrical Services, Inc., Lewis R. Sunkel, Dauphin Associates, Inc. d/b/a Dauphin Electric and Comfort Tech, Inc. Cumberland County C.C.P. No. 2005-3894 Dear Attorney van Steenburgh: Please find enclosed a proposed Stipulation in the above-referenced matter to withdraw objectionable language of your Complaint, namely Paragraph 52 of the Complaint, specifically "but are not limited to"; Paragraph 52(o) specifically "otherwise failing to perform their work in a good and workmanlike manner"; and Paragraph 61 specifically "otherwise failing to perform their work in a good and workmanlike manner". Please sign the Stipulation and return it to me, so that I may file it with the Prothonotary. If you will not agree to do so, then I will move to file Preliminary Objections. Thank you for your attention to this matter. Very truly THOMAS Enclosure IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, VS. No. 2005-03894 CIVIL CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED STIPULATION AND, NOW, this day of 2005, it is agreed between Heidi van Steenburgh, Esquire, counsel for the Plaintiff, and Thomas B. Sponaugle, Esquire, counsel for Defendant Comfort Tech, Inc., that the language referenced in Paragraph 52 of the Complaint, specifically "but are not limited to ; Paragraph 52(o) specifically "otherwise failing to perform their work in a good and workmanlike manner"; and Paragraph 61 specifically "otherwise failing to perform their work in a good and workmanlike manner" is withdrawn with prejudice. Heidi van Steenburgh, Esquire Attorney for Plaintiff Thorhtls B ugle, Esquire Attorney r efendant Comfort Tech, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, No. 2005-03894 CIVIL VS. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 11 61 day of 2005, I, Thomas B. Sponaugle, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Preliminary Objections of Defendant Comfort Tech, Inc. to Plaintiff's Complaint by United States Mail, addressed to the party or attorney of record as follows: Heidi van Steenburgh, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 (Counsel for Plaintiff) Thomas E. Brenner, Esquire Goldsberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (Counsel for D.L. Heiges Electrical) Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Electric 1830 South 19'h Street Harrisburg, PA 17104 Inc. d/b/a Dauphin GRIFFITH, STRICKLER, LERMAN, SOLYY S & CALKINS By. 4^ L/?/u THOMAS B. SPONAUGLE, ESQUIRE Supreme Court I.D. #64584 Attorney for Defendant Comfort Tech, Inc 110 South Northern Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, No. 2005-03894 CIVIL VS. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE PURSUANT TO Pa.R.C.P. 1012 TO THE PROTHONOTARY: Kindly enter the appearances of Robert A. Lerman, Esquire and Thomas B. Sponaugle, Esquire of Griffith, Strickler, Lerman, Solymos & Calkins, as attorneys for Defendant, Comfort Tech, Inc., in the above-captioned matter and mark the docket accordingly. STRICKLER, LERMAN, YMOS & CALKINS BY: ?U 4 OBERT A. RMA? Attorney I.D. No. 07490 BY: THOMAS B. SPONACJGLE, ESQUIRE Attorney I.D. No. 64585 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 Dated: November /W 2005 Attorneys for Defendant, Comfort Tech, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, No. 2005-03894 CIVIL V5. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 4 of / (V` x'2005, I, Thomas B. Sponaugle, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Praecipe for Entry of Appearance by United States Mail, addressed to the party or attorney of record as follows: Heidi van Steenburgh, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 (Counsel for Plaintiff) Thomas E. Brenner, Esquire Goldsberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (Counsel for D.L. Heiges Electrical) Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Electric 1830 South 19th Street Harrisburg, PA 17104 Inc. d/b/a Dauphin GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS i By: 6 _? THOMAS B. SPONAU LE, ESQUIRE Supreme Court I.D. 464584 Attorney for Defendant Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 rl "T -n THOMAS, THOMAS & HAFER, LLP by: Brooks R. Foland, Esquire I.D. No. 70102 305 North Front Street 6th Floor POB 999 Harrisburg, PA 17108-0999 Attorneys for Dauphin Associates, Inc., a/k/a d/b/a (717) 255-7626 Dauphin Electric MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of the Fitness Company, Inc. d/b/a Alpha Racquetball Fitness Club, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. &Wa d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY No.: -6- ri CIVIL TERM JURY TRIAL DEMANDED AND NOW, comes Defendant Dauphin Associates, hie., a/k/a d/b/a Dauphin Electric (hereinafter "Dauphin"), by and through its attorneys, Thomas, Thomas & Hafer, LLP, and files the following Preliminary Objections: On or about October 20, 2005, Plaintiff filed a Complaint against Defendants. A copy of the Complaint is attached hereto as Exhibit A. This case concerns electrical work performed at Plaintiff s insured's health and fitness facility. 3. In its Complaint, Plaintiff alleges against Defendant Dauphin claims of negligence, breach of contract, and breach of express and/or implied warranty.I 4. Plaintiff alleges in Paragraph 55 of its Complaint that Plaintiff s insured and Defendant Dauphin entered into an agreement whereby Dauphin would perform electrical services for Plaintiffs insured, and bases its claims of breach of contract and breach of express and/or implied warranties on this averment. MOTION TO DISMISS/STRIKE PLAINTIFF'S COMPLAINT FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO PA.R.C.P. 1028(a)(2) 5. Defendant Dauphin incorporates by reference paragraphs 1 through 4 as if set forth fully herein. 6. Pa.R.C.P. 1028(a)(2) states that a party may object to a pleading for failure to conform to law or rule of court. Pa.R.C.P. 1024(c) requires every pleading to be verified by one or more of the parties filing the pleading unless (1) all the parties filing the pleading lack sufficient knowledge, or (2) all the parties filing the pleading are outside of the court's jurisdiction. Pa.R.C.P. 1024(c) also states that where verification is made by a person other than the parties, the person is to set forth his or her source of the information and the reason why the verification is not made by a party. 9. Plaintiff s Complaint is neither verified by plaintiff, nor explains why Plaintiff has not verified its Complaint. ' These claims, found in counts seven, eight, and nine of Plaintiff's Complaint, are also alleged against Defendant Comfort Tech, Inc., within those same counts. WHEREFORE, Defendant Dauphin respectfully requests this Honorable Court to grant its preliminary objections and strike/dismiss Plaintiff's Complaint, in regards to Defendant Dauphin, with prejudice. MOTION TO DISMISS/STRIKE COUNTS EIGHT AND NINE OF PLAINTIFF'S COMPLAINT FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO PA.R.C.P. 1028(a)(2) 10. Defendant Dauphin incorporates by reference paragraphs 1 through 9 as if set though fully set forth herein. 11. Pa.R.C.P. 1028(a)(2) states that a party may object to a pleading for failure to conform to law or rule of court. 12. Pa.R.C.P. 1019(i) provides that when a claim is based upon a writing, the pleader shall attach a copy of the writing or the material part thereof. Rule 1019(i) further states that if the writing is not accessible to the pleader, it is sufficient to state as much, as well as the reason for its unavailability to the pleader, and set forth the substance of the writing. 13. Plaintiff has failed to attach a copy of the alleged agreement between Dauphin and Plaintiff's insured. 14. Plaintiff does not contend in its Complaint that the alleged agreement is unavailable to it, nor states any reason for any unavailability of the alleged agreement. WHEREFORE, Defendant Dauphin respectfully requests this Honorable Court to grant its preliminary objections and strike/dismiss Counts Eight and Nine of Plaintiff's Complaint, in regards to Defendant Dauphin, with prejudice. MOTION TO STRIKE FOR INSUFFICIENT SPECIFICITY IN A PLEADING, OR IN THE ALTERNATIVE, MOTION FOR A MORE SPECIFIC PLEADING PURSUANT TO PA.R.C.P. 1028(a)(3) 15. Defendant Dauphin incorporates by reference paragraphs 1 through 14 as if set forth fully herein. 16. Paragraph 52(0) of Plaintiff's Complaint alleges that Dauphin was negligent in "otherwise failing to perform [its] work in a good and workmanlike manner." 17. Paragraph 53 of Plaintiff's Complaint alleges, in part, that "As a direct result of the ... other liability producing conduct" of Dauphin, Plaintiff's insured suffered damages. 18. Paragraph 57 of Plaintiffs Complaint alleges, in part, that "As a direct result of the ... other liability producing conduct" of Dauphin, Dauphin breached its contract with Plaintiffs insured. 19. Paragraph 61 of Plaintiffs Complaint alleges, in part, that "Dauphin ... breached [its] express and/or implied warranties that [its] services would be performed in a good and workmanlike manner by ... otherwise failing to perform [its] work in a good and workmanlike manner." 20. Pa.R.C.P. 1028(a)(3) states that a party may file a preliminary objection on the grounds that a pleading lacks sufficient specificity. 21. Pa.R.C.P. 1019(a) provides that the material facts a cause of action is based shall be stated in a concise and summary form. A Complaint must not only allege all the material facts upon which a cause of action lies, but it must plead each fact in a concise and summary form. 22. A defendant may file preliminary objections and move to strike off an insufficient statement, such as "otherwise failed to use due care and caution under the circumstances," or may obtain a rule for a more specific statement. Connor v. Allegheny General Hosp., 461 A.2d 600, 603 n.3 (Pa. 1983). 23. The above averments of Plaintiff's Complaint are insufficient in specificity to put Dauphin on notice as to what "other liability producing conduct" of Dauphin Plaintiff claims caused damages, or how Dauphin "otherwise failed to perform [its] work in a good and workmanlike manner." WHEREFORE, Defendant Dauphin respectfully requests this Honorable Court to grants its preliminary objections, and strike paragraph 52(o), the phrase "and/or other liability producing conduct" of Paragraphs 53 and 57 of Plaintiffs Complaint, and the phrase "and otherwise failing to perform [its] work in a good and workmanlike manner" of Paragraph 61 of Plaintiffs Complaint, in regards to Defendant Dauphin, with prejudice, or, in the alternative, order Plaintiff to plead with specificity what constitutes this other failure or conduct. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP by: Brooks R. Forid, Esquire s I.D. No. 70102 ?- 305 North Front Street, 6th Floor Attorneys for Defendant Dauphin POB 999 Associates, Inc., a/k/a d/b/a Harrisburg, PA 17108-0999 Dauphin Electric (717) 255-7626 t ???? ? ?? WHITE AND WILLIAMS LLP Heidi van Steenburgh, Esquire Pennsylvania Bar I.D. 83186 1800 One Liberty Place Philadelphia, PA 19103 215-864-7126 MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, Plaintiff V, D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNREL, DAUPHIN ASSOCIATES, INC. aWa d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2005-03894 CIVIL JURY TRIAL DEMANDED COMPLAINT Plaintiff Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club by and through its counsel, White and Williams LLP, hereby demands judgment against Defendants D.L Heiges Electrical Services, Inc., Lewis R. Sunkel, Dauphin Associates, Inc., a/k/a dfb/a Dauphin Electric and Comfort Tech, Inc. and in support thereof avers as follows: 1. Plaintiff Massachusetts Bay Insurance Company is a New Hampshire corporation with its principal place of business located at 440 Lincoln Street, Worcester, Massachusetts. 2. Upon information and belief, Defendant D.L. Heiges Electrical Services, Inc. is a Pennsylvania corporation with its principal place of business located at 5 Montasere Court, Dillsburg, Pennsylvania. 3. Upon information and belief, Defendant Lewis R. Sunkel is an adult individual residing at 21 Farm House Lane, Camp Hill, Pennsylvania. DOCS_PH 1589008v,l 992-d M d ZE9-1 Attorneys for Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club -it06 d 08 £:01 9004-IE-100 4. Upon information and belief, Defendant Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric is a Pennsylvania corporation with its principal place of business located at 1830 South 192' Street, Harrisburg, Pennsylvania. 5. Upon information and belief, Defendant Comfort Tech, Inc. is a Pennsylvania corporation with its principal place of business located at 1010 Flowers Lane, Marysville, Pennsylvania. Plaintiff issued insurance policy number ZDN 6867123 to The Fitness Company, Inc., d/b/a Alpha Racquetball and Fitness Club (hereinafter "Plaintiff s insured'), covering its business personal property located at 4732 Old Gettysburg Road, Mechanicsburg, Pennsylvania. Plaintiffs insured operated a health and fitness facility at 4732 Old Gettysburg Road (hereinafter the "subject premises"). 8. In or about Summer, 2001, Plaintiff s insured hired and/or retained Lewis Sunkel to service and/or upgrade the electrical system and components at the subject premises. 9. Defendant Sunkel worked at the subject premises until December, 2001. 10. Upon information and belief, Plaintiff s insured hired and/retained Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric (hereinafter "Dauphin") to work at the subject premises. During such work, Dauphin had reason to make electrical connections and/or adjustments. 11. Upon information and belief, Plaintiff's insured hired and/or retained Comfort Tech to work at the subject premises. During such work, Comfort Tech had reason to make electrical connections and/or adjustments. 12. Thereafter, in or about July, 2003, circuit breakers at the subject premises began tripping. DOCS PH 1389008v.1 -2- 992-d HOMO d ZE9-1 -W08d Me: 01 9OOZ-[E-100 13. Plaintiff's insured hired and/or retained Defendant D.L. Heiges Electrical Services (hereinafter "Heiges Electrical") to service the electrical system. 14, Heiges Electrical serviced the electrical system and component parts at the subject premises on several occasions in July, 2003. 15. On or about July 30, 2003, a devastating fire occurred at the subject premises causing substantial destruction to Plaintiff a insured's business personal property. 16. Sunkel was negligent in failing to properly service and/or upgrade the electrical system and components at the subject premises and such negligence caused a fire and subsequent property damage. IT Dauphin was negligent in failing to properly service electrical components at the subject premises and such negligence caused a fire and subsequent property damage. 18. Comfort Tech was negligent in failing to properly service electrical components at the subject premises and such negligence caused a fire and subsequent property damage. 19. Heiges Electrical was negligent in failing to properly service and/or repair the electrical system and components at the subject premises and such negligence caused a fire and subsequent property damage. 20. As a direct and proximate result of the acts and/or omissions of Defendants, the resulting fire caused extensive damage to Plaintiff's insured's business personal property, repair expenses, business interruption losses and incidental and consequential damages. 21. Massachusetts Bay, pursuant to the terms of the insurance agreement, paid its insured in excess of $100,000 for damages to its insured's business personal property. DOCS_PH 1589008v.1 -3- 992-4 Ob0/900 d 2E9-1 -Ki J ME 01 5004-1E-00 22. As a result of the payments by Massachusetts Bay to its insured, Massachusetts Bay is now subrogated to the rights of its insured to recover for the damages caused by the acts and/or omissions of Defendants. 23. Massachusetts Bay, as subrogee of The Fitness Company, Inc, d/b/a Alpha Racquetball and Fitness Club, now seeks recovery from Defendants. FIRST COUNT - NEGLIGENCE Plaintiff v. Defendant D.L. Heleee Electrical Services 24. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 25. Heiges Electrical owed a duty to Plaintiff's insured to perform its duties in a careful and proper manner so as not to cause harm to the subject premises. 26. The above mentioned fire and resulting damages were caused by and resulted from the negligent, grossly negligent, careless and reckless acts and/or omissions of Heiges Electrical by and through its agents, servants, employees, representatives, subcontractors, subagents and/or workmen, acting within the course and scope of their authority and employment. Said acts and/or omissions included, but are not limited to, the following: a. failing to properly and adequately service the electrical system and components at the subject premises; b. failing to properly and adequately address the cause of the tripping circuit breakers at the subject premises: C, failing to advise Plaintiff's insured that a serious and dangerous condition was created by the electrical system and components at the subject premises; d. failing to identify and correct a serious electrical problem at the subject premises; e. failing to recognize and/or correct the danger created by the bypassed high limit switch at the subject premises; DOCS_PH 1589008v.I -4. 992-d 020/900 d US-1 -HOH "H 0 I 9004-IE-100 f. failing to recognize that the electrical wiring at the subject premises had inadequate and/or improper insulation; g. failing to warn Plaintiff's insured regarding the use of wiring with inadequate and/or improper insulation; h. failing to red flag and/or remove from operation electrical wiring and systems that posed and/or created a risk of fire; i, failing to recognize a hazard of fire; j. failing to properly and adequately hire, instruct and/or supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system and components; k. failing to take reasonable steps to ensure that its agents, servants, employees, representatives, subcontractors, subagents and/or workmen were observing applicable safety standards and procedures while servicing and/or repairing the electrical system and components at the subject premises; failing to take reasonable steps to ensure that the electrical system and components were safely and properly functioning; M. failing to warn Plaintiff s insured of the hazards associated with an improperly functioning electrical system; n. failing to inspect, test and/or otherwise ensure that the electrical system and components were properly and safely functioning; and o. otherwise failing to perform its work in a good and workmanlike manner. 27. As a direct and proximate result of the negligent, grossly negligent, careless, reckless and/or other liability producing conduct of Heiges Electrical, Plaintiffs insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Heiges Electrical. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment DOCS PHf5S900Sv.1 -5- 991-d Ot0/100 d M-1 -YY08d NMI[ 9002-1E-100 against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. SECOND COUNT - BREACH OF CONTRACT Plaintiff v. Defendant D.L. Heiges Electrical Services 28. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 29. In July, 2003, Plaintiff's insured and Heiges Electrical entered into an agreement whereby Heiges Electrical would service and/or repair the electrical system and components at the subject premises. 30. Pursuant to the terms of the agreement, Heiges Electrical was responsible for servicing and/or repairing the electrical system and components in a safe and proper manner. 31. Heiges Electrical breached its agreement with Plaintiff s insured by failing to properly service and/or repair the electrical system and components at the subject premises, failing to properly and adequately supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen and failing to provide personnel who would perform their duties in a careful and proper manner. 32. As a direct and proximate result of the breach of contract by Heiges Electrical, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Heiges Electrical. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc, d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment DOCS_PH 1589008v.1 -6- 991-4 OZO/900 d ZE9-1 -NOU POO:01 EOOZ-IE-100 against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. 33. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 34. At the time Heiges Electrical undertook to perform its services at the subject premises, it was under an express and/or implied obligation to perform such services in a good and workmanlike manner. 35. Heiges Electrical breached its express and/or implied warranty that its services would be performed in a good and workmanlike manner by failing to properly and adequately service and/or repair the electrical system and components at the subject premises, failing to recognize a hazard of fire and failing to properly and adequately hire, instruct and/or supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system and components and failing to provide personnel who would perform their duties in a careful and proper manner so as to not cause harm to the subject premises. 36. As a direct and proximate result of the breach of its express and/or implied warranty by Heiges Electrical, Plaintiffs insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Heiges Electrical. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment DOCS PH I589008v,I -7- 991-d OZO/800 d M-1 -Noed Wok: 01 SON- [E-100 against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. FOURTH COUNT-NEGLIGENCE Plaintiff Y. Defendant Lewis Sunkel 37. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 3 g. Lewis Sunkel owed a duty to Plaintiff's insured to perform his duties in a careful and proper manner so as not to cause harm to the subject premises. 39. The above mentioned fire and resulting damages were caused by and resulted from the negligent, grossly negligent, careless and reckless acts and/or omissions of Sunkel, acting by and through his agents, servants, employees, representatives, subcontractors, subagents and/or workmen, acting within the course and scope of their authority and employment. Said acts and/or omissions included, but are not limited to, the following: a. failing to properly and adequately install and service the electrical system and components at the subject premises; b, failing to properly and adequately upgrade the electrical system and components at the subject premises; c. Wing to follow the sauna manufacturer's instructions regarding the type of electrical wiling to be used; d. failing to use electrical wire with the proper insulation during this work; e. bypassing critical electrical safety features; f. failing to correct a deficient and dangerous condition created by bypassing the high limit switch; g. failing to recognize that the electrical wiring had improper and/or inadequate insulation; h. failing to warn Plaintiffs insured regarding the use of wiring with improper and/or inadequate insulation; failing to recognize a hazard of fire; DOCS PH 1589008v.1 -S- 991-d OZO/010 d M-1 -Hui WVIV:01 5002-1t-1J0 failing to properly and adequately hire, instruct and/or supervise his agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system and components; k. failing to take reasonable steps to ensure that his agents, servants, employees, representatives, subcontractors, subagents and/or workmen were observing applicable safety standards and procedures while servicing and/or repairing the electrical system and components at the subject premises; failing to take reasonable steps to ensure that the electrical system and components were safely and properly functioning; M. failing to wam Plaintiffs insured of the hazards associated with an improperly functioning electrical system; n. failing to inspect, test and/or otherwise ensure that the electrical system and components were properly and safely functioning; and o. otherwise failing to perform his work in a good and workmanlike manner. 40. As a direct and proximate result of the negligent, grossly negligent, careless, reckless and/or other liability producing conduct of Sunkel, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of 5100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Lewis Sunkel. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. DOCS_PH 1589008v.1 -9- 992-d Oi0/110 d dt9-1 -fluj hvlV:01 SON-le-130 FIFTH COUNT - BREACH OF CONTRACT Plaintiff v. Defendant Lewis Snnkel 41, Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein, 42. In 1999 or 2000, Plaintiff's insured and Lewis Sunkel entered into an agreement whereby Sunkel would upgrade, service and/or repair the electrical system and components at the subject premises. 43, Pursuant to the terms of the agreement, Sunkel was responsible for upgrading, servicing and/or repairing the electrical system and components in a safe and proper manner. 44. Sunkel breached his agreement with Plaintiff's insured by failing to properly upgrade, service and/or repair the electrical system and components at the subject premises, failing to properly and adequately supervise his agents, servants, employees, representatives, subcontractors, subagents and/or workmen and failing to provide personnel who would perform their duties in a careful and proper manner. 45. As a direct and proximate result of the breach of contract by Sunkel, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Lewis Sunkel. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. DOCS_PH 1589008x.1 -10- 992-d OSO/d10 d US-1 -Hui Wtll4 Ol 900d-IE-40 SIXTH COUNT - BREACH OF EXPRESS AND/OR IMPLIED WARRANTY Plaintiff v. Defendant Lewis Sunkel 46. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 47. At the time Lewis Sunkel undertook to perform his services at the subject premises, he was under an express and/or implied obligation to perform such services in a good and workmanlike manner. 48. Sunkel breached the express and/or implied warranty that his services would be performed in a good and workmanlike manner by failing to properly and adequately upgrade service and/or repair the electrical system and components at the subject premises, failing to recognize a hazard of fire and failing to properly and adequately hire, instruct and/or supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system and components, failing to provide personnel who would perform their duties in a careful and proper manner so as to not cause harm to the subject premises. 49. As a direct and proximate result of the breach of his express and/or implied warranty by Sunkel, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Sunkel, Dauphin Associates, Dauphin and/or Comfort Tech, Inc. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment AOCUK 1589008v.I -I1 991-1 OWE 10 d M-1 -PNJ 01t;01 9004-IN00 against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. 50. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 51. Dauphin and Comfort Tech owed a duty to Plaintiff s insured to perform their duties in a careful and proper manner so as not to cause harm to the subject premises. 52. The above mentioned fire and resulting damages were caused by and resulted from the negligent, grossly negligent, careless and reckless acts and/or omissions of Dauphin and Comfort Tech, acting by and through their agents, servants, employees, representatives, subcontractors, subagents and/or workmen, acting within the course and scope of their authority and employment. Said acts and/or omissions included, but are not limited to, the following: a, failing to properly and adequately service the electrical system, its components and other electrical devices at the subject premises; b. failing to follow the sauna manufacturer's instructions regarding the type of electrical wiring to be used; C. failing to make proper and adequate electrical connections during its work; d. failing to use electrical wire with the proper insulation during their work; C. bypassing critical electrical safety features; failing to correct a deficient and dangerous condition created by bypassing the high limit switch; g, failing to recognize that the electrical wiring had improper and/or inadequate insulation; It. failing to warn Plaintiff s insured regarding the use of wiring with improper and/or inadequate insulation; failing to recognize a hazard of fire; DOCS PH 1589008x.1 -12- 991-1 OZO/Y10 d Z£9-i -Kul OIYZV?U 9062-1£-176 failing to properly and adequately hire, instruct and/or supervise their agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system, its components and other electrical devices; k. failing to take reasonable steps to ensure that their agents, servants, employees, representatives, subcontractors, subagents and/or workmen were observing applicable safety standards and procedures while servicing and/or repairing the electrical system, its components and other electrical devices at the subject premises; 11 failing to take reasonable steps to ensure that the electrical system, its components and other electrical devices were safely and properly functioning; M. failing to warn Plaintiffs insured of the hazards associated with an improperly functioning electrical system or electrical devices; n. failing to inspect, test and/or otherwise ensure that the electrical system, its components and other electrical devices were properly and safely functioning; and 0. otherwise failing to perform their work in a good and workmanlike manner. 53. As a direct and proximate result of the negligent, grossly negligent, careless, reckless and/or other liability producing conduct of Dauphin and Comfort Tech, Plaintiff s insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Dauphin and Comfort Tech. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. DOCS_PH 1589008v. t -13- 991-d ON/910 d M-1 -flu PHVZY:01 SON-It-100 and Comfort Tech, Inc. 54. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein. 55. Plaintiffs insured and Dauphin and Comfort Tech entered into an agreement whereby Dauphin and Comfort Tech would perform work on the electrical system, its components and/or other electrical devices at the subject premises. 56. Pursuant to the terms of the agreement, Dauphin and Comfort Tech were responsible for servicing and/or repairing the electrical system, its components and/or other electrical devices in a safe and proper manner. 57. As a direct and proximate result of the negligence, gross negligence, carelessness, recklessness and/or other liability producing conduct of Dauphin and Comfort Tech, as more fully set forth herein and incorporated by reference, Dauphin and Comfort Tech breached their contract with Plaintiff's insured. 58. As a direct and proximate result of the breach of contract by Dauphin and Comfort Tech, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Lewis Sunkel. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. DOCS_PH I5S9009V.1 -14- 992-i CZ01910 d ZE9-1 -AM Wk:01 9002-1E-100 and Comfort Tech. Inc. 59. Plaintiff hereby incorporates the allegations contained in the foregoing paragraphs as though same were fully set forth at length herein, 60. At the time Dauphin and Comfort Tech undertook to perform their services at the subject premises, they were under an express and/or implied obligation to perform such services in a good and workmanlike manner. 61. As a direct and proximate result of its conduct, as more fully set forth above and incorporated herein by reference, Dauphin and Comfort Tech breached their express and/or implied warranties that their services would be performed in a good and workmanlike manner by failing to properly and adequately service and/or repair the electrical system, its components and other electrical devices at the subject premises, failing to recognize a hazard of fire and failing to properly and adequately hire, instruct and/or supervise its agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system, its components and other electrical devices, failing to provide personnel who would perform their duties in a careful and proper manner so as to not cause harm to the subject premises and otherwise failing to perform their work in a good and workmanlike manner. 62. As a direct and proximate result of the breach of express and/or implied warranties by Dauphin and Comfort Tech, Plaintiff's insured sustained damage to its business personal property, repair expenses, business interruption losses and incidental and consequential damages in an amount in excess of $100,000, for which Plaintiff has become subrogated by virtue of its payment to its insured and now demands judgment against Dauphin and Comfort Tech. DOCS_PH 1589008v.1 -15- 992-d OZO/110 d US-1 -HO8d OR 01 SODS-Ie-1J0 WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, hereby demands judgment against all Defendants in an amount in excess of $100,000, plus interest, attorney's fees, costs and such other and further relief as this Court deems appropriate. Respectfully Submitted, WHITE AND WILLIAMS LLP Dated: 10-Z0-05 DOCS_PH 1389008v.1 ea t van Steenburgh, Esquire Attorneys for Plaints -16- 992-d MAN d US-1 -W08d Met: 01 9004-IE-no VERWICATION I, Heidi van Steenburgh, attorney for Massachusetts Say Insurance Company, verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief I understand that I am making these statements subject to the penalties of 18 Pa. C. S. § 4904, relating to unswom falsification to authorities. eidivan Steenburgh Dated: a -?5 DOCS_PH 1589008v, l 992-d OZO/610 d M-1 -HN0 PNy6p;01 5002-10-100 CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of the foregoing document was served upon all parties listed below by First Class Mail, postage prepaid: Thomas E. Brenner, Esquire Goldberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric 1830 South 19th Street Harrisburg, PA 17104 Comfort Tech, Inc. 1010 Flowers Lane Marysville, PA 17053 Heidivan Steenburgh Dated: la ZO - 0 5 DOCS PH 1589008v.1 99L-d OWON d US-1 -AOad 4NYOV:01 5004-1t-100 CERTIFICATE OF SERVICE AND NOW, this al y of , 20Q5I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Heidi van Steenburgh, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 Thomas E. Brenner, Esq. Goldberg Katzman POB 1268 Harrisburg, PA 17108-1268 ( )fl? - Coleen M. Polek ?_ _, _, -, THOMAS, THOMAS & HAFER, LLP by: Brooks R. Foland, Esquire I. D. No. 70102 305 North Front Street 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 MASSACHUSETTS BAY INSURANCE COMPANY, AS SUBROGEE OF THE FITNESS COMPANY, INC. d/b/a ALPHA RACQUETBALL AND FITNESS CLUB, Plaintiff V. Attorneys for Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric THE COURT OF COMMON PLEAS COUNTY, PENNSYLVANIA 2005-03894 CIVIL D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC AND COMFORT TECH, INC., Defendant URY TRIAL DEMANDED DEFENDANT DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC's REPLY TO NEW MATTER CROSSCLAIM OF D.L. HEIGES ELECTRICAL SERVICES, INC. 69. Denied. 70. Denied. It is specifically denied that should Defendant D.L. Heiges Electric Services, Inc. be found liable on Plaintiffs claim, which liability is specifically denied, then Defendant Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric are liable over to Defendant D.L. Heiges on the Plaintiff's cause of action for indemnity and/or contribution; in the alternative, it is denied that Defendant Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric is jointly and/or severally liable on the Plaintiffs cause of action. WHEREFORE, Defendant Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric respectfully requests that judgment be entered in its favor and against Defendant D.L. Heiges Electrical Services, Inc. on the latter's new matter crossclaim. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP by Brooks R. Foland, Esquire I.D. No. 70102 305 North Front Street, 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 392278.1 VERIFICATION The undersigned, having read the attached document, hereby verifies that the attached pleading is based on information which has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel. Furthermore, the matters contained in this pleading are of a procedural nature only among counsel and the court. The undersigned verifies that he has read the attached pleading and that it is true and correct to the best of his information and belief. This Verification is made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Brooks R. Foland / Q C,E TIFICATE OF SERVICE AND NOW, this / /day of , 200_5, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Heidi van Steenburgh, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 Thomas E. Brenner, Esq. Goldberg Katzman POB 1268 Harrisburg, PA 17108-1268 6 Co en M. Polek IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, VS. D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. No. 2005-03894 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT COMFORT TECH, INC.'S REPLY TO NEW MATTER OF DEFENDANT D.L. HEIGES ELECTRICAL SERVICES. INC 69. Defendant Comfort Tech, Inc. incorporates by reference its Answer & New Matter to the Complaint. 70. Denied. Paragraph 70 is a conclusion of law to which no response is required. WHEREFORE, Defendant Comfort Tech, Inc. demands judgment in its favor and against all other parties. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CAL,KINS . By: Supreme Court ESQUIRE Attorney for Defendpt Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, No. 2005-03894 CIVIL COMPANY, Plaintiff, VS. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, : INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED VERIFICATION I, Thomas B. Sponaugle, Esquire, do hereby verify that I am the attorney of record for the pleading party herein, Comfort Tech, Inc., and that the facts set forth in the foregoing pleading are true to the best of my knowledge, information and belief, upon information supplied. I understand that false statements made herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unworn falsification to authorities. GRIFFITH, SOLYMOS Dated: BY: V _ THO A UGLE, ESQUIRE Supreme Cou I. /#6458 110S outh N ?hhefti Way York, Pennsylvania 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, No. 2005-03894 CIVIL COMPANY, Plaintiff, VS. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this .day of 2005, I, Thomas B. Sponaugle, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Defendant Comfort Tech, Inc.'s Reply to New Matter of Defendant D.L. Heiges Electrical Services, Inc. by United States Mail, addressed to the party or attorney of record as follows: Heidi van Steenburgh, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 (Counsel for Plaintiff) Thomas E. Brenner, Esquire Goldsberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (Counsel for D.L. Heiges Electrical) Lewis R. Sunk-el 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Electric 1830 South 19`h street Inc. d/b/a Dauphin Harrisburg, PA 17104 GRIFFITH, STRI KLER, LERMAN, SOLYMOS ALKINS By: THOMAS 17Qdant i1GLE, ESQUIRE Supre e C4584 Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 r-? :.? `n _I ---n Ld '.`='i C.` ? ? ; -.. ' i_a l .1 'i7 MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff V. D.L. HEIGES ELECTRIC, LEWIS R.: SUNKEL, DAUPHIN ASSOCIATES, : INC., DAUPHIN ELECTRIC, and COMFORT TECH, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 2005-03894 CIVIL ACTION - LAW STIPULATION OF COUNSEL AND NOW, come counsel for the Plaintiff and Defendant D.L. Heiges Electrical Services, Inc., who state: The parties have agreed to strike paragraph 26(0) from the Complaint. Massachusetts Bay Insurance Company, a/s/o the Fitness Company, Inc, d/b/a Alpha Racquet and Fitness Club Date: ;t'! Heidi van Steenburgh, Esq e White & Williams One Liberty Place, Suite 1800 Philadelphia, PA 19103 D.L. Heiges Electrical Services, Inc. Date: t?3?05 Bp:' Thomas E. Brenner, Esquire Goldberg Katzman, P.C. PO Box 1268 Harrisburg, PA 17108-1268 128468.1 r .?? ?, .} ?? ;, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, No. 2005-03894 CIVIL VS. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE a 1h ?. AND NOW, this day of rV?l , 2005, I, Thomas B. Sponaugle, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Request for Production of Documents, Statements and Things Served Upon Plaintiff by Defendant Comfort Tech, Inc. by United States Mail, addressed to the party or attorney of record as follows: Heidi van Steenburgh, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 (Counsel for Plaintiff) Thomas E. Brenner, Esquire Goldsberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (Counsel for D.L. Heiges Electrical) Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Electric 1830 South 19"' Street Harrisburg, PA 17104 hic. d/b/a Dauphin GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS / By: THOMAS B. SF- N/69GL,Ex,-ESQUIRE Supreme Court I. #64584 Attorney for Defendant Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 tJ _ ? YI '-I C;i _..., ? _ _ L.J r?L r'-. i ` ? 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, No. 2005-03894 CIVIL VS. CIVIL. ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. D'efendant's. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE z to AND NOW, this '-'0 day of 2005, I, Thomas B. Sponaugle, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Property Damage Interrogatories of Defendant Comfort Tech, Inc. to Plaintiff by United States Mail, addressed to the party or attorney of record as follows: Heidi van Steenburgh, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 (Counsel for Plaintiff) Thomas E. Brenner, Esquire Goldsberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (Counsel for D.L. Heiges Electrical) Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Electric 1830 South 19`n Street Harrisburg, PA 17104 Inc. d/b/a Dauphin i GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALV4NS i ' By: THOMAS A. SPOI)Y ESQUIRE Supreme Court I. 584 Attorney for Defendant Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, No. 2005-03894 CIVIL VS. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this X `I' day of T u' SL?7r ?d°1 2005, I, Thomas B. Sponaugle, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Request for Production of Documents, Statements and Things Served Upon Defendant Dauphin Associates, Inc. d/b/a Dauphin Electric by Defendant Comfort Tech, Inc. by United States Mail, addressed to the party or attorney of record as follows: Heidi van Steenburgh, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 (Counsel for Plaintiff) Thomas E. Brenner, Esquire Goldsberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (Counsel for D.L. Heiges Electrical) Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Electric 1830 South 19`h Street Inc. d/b/a Dauphin Harrisburg, PA 17104 GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CAI KINS, _ By: THOMAS T3. S't?XJGLE, ESQUIRE Supreme Court D.G#64584 Attorney for Defendant Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 ?, _? ?..:? .., ?- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, VS. No. 2005-03894 CIVIL CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, : INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, thisP'S day of 2005, I, Thomas B. Sponaugle, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Request for Production of Documents, Statements and Things Served Upon Defendant D.L. Heiges Electrical Services, Inc. by Defendant Comfort Tech, Inc. by United States Mail, addressed to the party or attorney of record as follows: Heidi van Steenburgh, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 (Counsel for Plaintiff) Thomas E. Brenner, Esquire Goldsberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (Counsel for D.L. Heiges Electrical) Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Electric 1830 South 19`h Street Inc. d(bfa Dauphin Harrisburg, PA 17104 GRIFFITH, ' SOLYMOS By: THOMA ,IOAUGLE, ESQUIRE Supreme Court . #64584 Attorney for Defendant Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 ? ? ? ? 4 I 5 ?. S'?= IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, No. 2005-03894 CIVIL VS. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, thislif) day of f? 2005, I, Thomas B. Sponaugle, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Request for Production of Documents, Statements and Things Served Upon Defendant Lewis R. Sunkel by Defendant Comfort Tech, Inc. by United States Mail, addressed to the party or attorney of record as follows: Heidi van Steenburgh, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 (Counsel for Plaintiff) Thomas E. Brenner, Esquire Goldsberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108 (Counsel for D.L. Heiges Electrical) Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Electric 1830 South 19`1, Street Harrisburg, PA 17104 Inc. d/b/a Dauphin GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALIfdNS By: THOMAS B. SPON, ESQUIRE Supreme Court I.D. 64584 Attorney for Defendant Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 ?? ? ?? ?_. _ Z i'J ru IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, VS. D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. No. 2005-03894 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD To: Massachusetts Bay Insurance Company c/o Heidi van Steenburgh, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 You are hereby notified to file a written response to the enclosed Answer, New Matter and Cross Claim of Defendant Comfort Tech, Inc. within twenty (20) days from service hereof or a judgment may be entered against you. GRIFFITH, STRIC LER, LERMAN, SOLYMOS & J`ALK11S By: IHUMAS refenddant AUGLE, ESQUIRE Supreme C#64584 Attorney fo Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, No. 2005-03894 CIVIL COMPANY, Plaintiff, VS. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED ANSWER, NEW MATTER and CROSS CLAIM OF DEFENDANT COMFORT TECH, INC. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 7. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 8. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 9. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 10. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 11. Admitted as to the extent to do electrical connections and/or adjustments to HVAC equipment and not tanning and sauna equipment. 12. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 13. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 14. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 15. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 16. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 17. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 18. Denied. It is specifically denied that Comfort Tech was negligent in failing to properly service electrical components at the subject premises and such negligence caused a fire and subsequent property damage. On the contrary, at all times relevant hereto, Defendant Comfort Tech acted in a careful, lawful and prudent manner with due care under the circumstances and was not negligent and strict proof thereof is demanded. 19. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 20. Denied. Paragraph 20 is a conclusion of law to which no response is required. To the extent a response is required, it is specifically denied that Defendant Comfort Tech acted or omitted anything resulting in a fire to Plaintiff s insured's business personal property and strict proof thereof is demanded. 21. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 22. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. 23. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. FIRST COUNT - NEGLIGENCE Plaintiff v. Defendant D.L. Heiees Electrical Services 24. Paragraphs 1 through 23 of Defendant Comfort Tech, Inc.'s Answer are incorporated by reference. 25. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 26. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 27. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. WHEREFORE, Defendant Comfort Tech, Inc. demands judgment in its favor and against all other parties. SECOND COUNT - BREACH OF CONTRACT Plaintiff v. Defendant D.L. Heiees Electrical Services 28. Paragraphs 1 through 27 of Defendant Comfort Tech, Inc.'s Answer are incorporated by reference. 29. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 30. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 31. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 32. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. WHEREFORE, Defendant Comfort Tech, Inc. demands judgment in its favor and against all other parties. THIRD COUNT - BREACH OF EXPRESS AND/OR IMPLIED WARRANTY Plaintiff v. Defendant D.L. Heiaes Electrical Services 33. Paragraphs 1 through 32 of Defendant Comfort Tech, Inc.'s Answer are incorporated by reference. 34. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 35. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 36. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. WHEREFORE, Defendant Comfort Tech, Inc. demands judgment in its favor and against all other parties. FOURTH COUNT - NEGLIGENCE Plaintiff v. Defendant Lewis Sunkel 37. Paragraphs I through 36 of Defendant Comfort Tech, Inc.'s Answer are incorporated by reference. 38. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 39. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 40. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. WHEREFORE, Defendant Comfort Tech, Inc. demands judgment in its favor and against all other parties. FIFTH COUNT - BREACH OF CONTRACT Plaintiff v. Defendant Lewis Sunkel 41. Paragraphs 1 through 40 of Defendant Comfort Tech, Inc.'s Answer are incorporated by reference. 42. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 43. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 44. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 45. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. WHEREFORE, Defendant Comfort Tech, Inc. demands judgment in its favor and against all other parties. SIXTH COUNT - BREACH OF EXPRESS AND/OR IMPLIED WARRANTY Plaintiff v. Defendant Lewis Sunkel 46. Paragraphs 1 through 45 of Defendant Comfort Tech, Inc.'s Answer are incorporated by reference. 47. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 48. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. 49. Denied. This Interrogatory is directed to a non-Answering Defendant and therefore no response is required. WHEREFORE, Defendant Comfort Tech, Inc. demands judgment in its favor and against all other parties. SEVENTH COUNT - NEGLIGENCE Plaintiff v. Defendants Dauphin Associates, Inc. d/b/a Dauphin Electric and Comfort Tech, Inc. 50. Paragraphs 1 through 49 of Defendant Comfort Tech, Inc.'s Answer are incorporated by reference. 51. Denied. Paragraph 51 is a conclusion of law to which no response is required. 52. Denied. It is specifically denied the above-mentioned fire and resulting damages were caused by and resulted from the negligent, grossly negligent, careless and reckless acts and/or omissions of Comfort Tech, Inc., acting by and through its agents, servants, employees, representatives, subcontractors, subagents and/or workmen, acting within the course and scope of their authority and employment. Said acts and/or omissions included the following: a. Failing to properly and adequately service the electrical system, its components and other electrical devices at the subject premises; b. Failing to follow the sauna manufacturer's instructions regarding the type of electrical wiring to be used; c. Failing to make proper and adequate electrical connections during its work; d. Failing to use electrical wire with the proper insulation during their work; e. Bypassing critical electrical safety features; f. Failing to correct a deficient and dangerous condition created by bypassing the high limit switch; g. Failing to recognize that the electrical wiring had improper and/or inadequate insulation; h. Failing to warn Plaintiff's insured regarding the use of wiring with improper and/or inadequate insulation; i. Failing to recognize a fire hazard; j. Failing to properly and adequately hire, instruct and/or supervise their agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system, its components and other electrical devices; k. Failing to take reasonable steps to ensure that their agents, servants, employees, representatives, subcontractors, subagents and/or workmen were observing applicable safety standards and procedures while servicing and/or repairing the electrical system, its components and other electrical devices at the subject premises; 1. Failing to take reasonable steps to ensure that the electrical system, its components and other electrical devices were safely and properly functioning; m. Failing to warn Plaintiffs insured of the hazards associated with an improperly functioning electrical system or electrical devices; and n. Failing to inspect, test and/or otherwise ensure that the electrical system, its components and other electrical devices were properly and safely functioning. On the contrary, at all times relevant hereto, Defendant Comfort Tech, Inc. acted in a careful, lawful and prudent manner with due care under the circumstances and was not negligent, grossly negligent, careless and/or reckless and strict proof thereof is demanded. 53. Denied. It is specifically denied that Defendant Comfort Tech, Inc. was negligent, grossly negligent, careless and/or reckless. On the contrary, at all times relevant hereto, Defendant Comfort Tech, Inc. acted in a careful, lawful and prudent manner with due care under the circumstances and was not negligent, grossly negligent, careless and/or reckless and strict proof thereof is demanded. The remaining allegations in this Paragraph are denied because after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. WHEREFORE, Defendant Comfort Tech, Inc. demands judgment in its favor and against all other parties. EIGHTH COUNT - BREACH OF CONTRACT Plaintiff v. Defendants Dauphin Associates, Inc. d/b/a Dauphin Electric and Comfort Tech, Inc. 54. Paragraphs 1 through 53 of Defendant Comfort Tech, Inc.'s Answer are incorporated by reference. 55. Admitted as to agreeing to perform work on HVAC equipment and its related electrical components and not any sauna or tanning equipment. 56. Admitted as to agreeing to perform work on HVAC equipment and its related electrical components and not any sauna or tanning equipment. 57. Denied. Paragraph 57 is a conclusion of law to which no response is required. To the extent a response is required, Comfort Tech, Inc. denies that it breached any contract with the Plaintiff's insured and strict proof thereof is demanded. 58. Denied. It is specifically denied that Comfort Tech, Inc. breached any contract with the Plaintiff and strict proof thereof is demanded. The remaining allegations in this Paragraph are denied because after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. WHEREFORE, Defendant Comfort Tech, Inc. demands judgment in its favor and against all other parties. NINTH COUNT - BREACH OF EXPRESS AND/OR IMPLIED WARRANTY Plaintiff v. Defendants Dauphin Associates, Inc. d/b/a Dauphin Electric and Comfort Tech, Inc. 59. Paragraphs 1 through 58 of Defendant Comfort Tech, Inc.'s Answer are incorporated by reference. 60. Denied. Paragraph 60 is a conclusion of law to which no response is required. 61. Denied. It is specifically denied the above-mentioned fire and resulting damages were caused by and resulted from the negligent, grossly negligent, careless and reckless acts and/or omissions of Comfort Tech, hic., acting by and through its agents, servants, employees, representatives, subcontractors, subagents and/or workmen, acting within the course and scope of their authority and employment. Said acts and/or omissions included the following; a. Failing to properly and adequately service the electrical system, its components and other electrical devices at the subject premises; b. Failing to follow the sauna manufacturer's instructions regarding the type of electrical wiring to be used; c. Failing to make proper and adequate electrical connections during its work; d. Failing to use electrical wire with the proper insulation during their work; e. Bypassing critical electrical safety features; f. Failing to correct a deficient and dangerous condition created by bypassing the high limit switch; g. Failing to recognize that the electrical wiring had improper and/or inadequate insulation; h. Failing to warn Plaintiffs insured regarding the use of wiring with improper and/or inadequate insulation; i. Failing to recognize a fire hazard; Failing to properly and adequately hire, instruct and/or supervise their agents, servants, employees, representatives, subcontractors, subagents and/or workmen in the proper methods of servicing and/or repairing the electrical system, its components and other electrical devices; k. Failing to take reasonable steps to ensure that their agents, servants, employees, representatives, subcontractors, subagents and/or workmen were observing applicable safety standards and procedures while servicing and/or repairing the electrical system, its components and other electrical devices at the subject premises; Failing to take reasonable steps to ensure that the electrical system, its components and other electrical devices were safely and properly functioning; in. Failing to warn Plaintiffs insured of the hazards associated with an improperly functioning electrical system or electrical devices; and n. Failing to inspect, test and/or otherwise ensure that the electrical system, its components and other electrical devices were properly and safely functioning. On the contrary, at all times relevant hereto, Defendant Comfort Tech, Inc. acted in a careful, lawful and prudent manner with due care under the circumstances and was not negligent, grossly negligent, careless and/or reckless and strict proof thereof is demanded. 62. Denied. It is specifically denied that Comfort Tech, Inc. breached any contract with the Plaintiff and strict proof thereof is demanded. The remaining allegations in this Paragraph are denied because after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity of the allegation, the same is denied and strict proof thereof is demanded. WHEREFORE, Defendant Comfort Tech, Inc. demands judgment in its favor and against all other parties. By way of further response, the following is asserted: NEW MATTER 63. Paragraphs 1 through 62 of Defendant Comfort Tech, Inc.'s Answer are incorporated by reference. 64. Plaintiffs Complaint fails to state a cause of action upon which relief may be granted. 65. Plaintiffs Complaint maybe barred by the applicable statute of limitations. 66. Plaintiff's damages, if any, were caused solely and directly as a result of individuals or entities other than the Answering Defendant and over whom the Answering Defendant has no responsibility or right of control. 67. Plaintiff's damages, if any, were caused solely and directly as a result of the negligence of the Plaintiff which consisted of the following: a. Failing to properly maintain the electrical system and components; b. Failing to properly use the electrical system and components. 68. Plaintiff may have failed to mitigate his damages. 69. Plaintiff has recovered from the damages allegedly sustained as a result of this incident. 2252(d) NEW MATTER TO DEFENDANTS D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL AND DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC 70. Paragraphs 1 through 69 of Defendant Comfort Tech, Inc.'s Answer are incorporated by reference. 71. Liability on the part of Defendant Comfort Tech, Inc. is specifically denied. If the averments contained in Plaintiff's Complaint are established, said averments being specifically denied as they may relate to Defendant Comfort Tech, Inc., the and damages complained of were caused solely by Defendants D.L. Heiges Electrical Services, Inc., Lewis R. Sunkel and Dauphin Associates, Inc. d/b/a Dauphin Electric. 72. In the event of a finding of liability against Defendant Comfort Tech, Inc., which liability is specifically denied, Defendant Comfort Tech, Inc. hereby asserts its full rights of indemnification and contribution against Defendants D.L. Heiges Electrical Services, Inc., Lewis R. Sunkel and Dauphin Associates, Inc. d/b/a Dauphin Electric on the basis that Defendants D. L. Heiges Electrical Services, Inc., Lewis R. Sunkel and Dauphin Associates, Inc. d/b/a Dauphin Electric are alone liable, liable over, or jointly and severally liable to Plaintiff. 73. Defendants D.L. Heiges Electrical Services, Inc., Lewis R. Sunkel and Dauphin Associates, Inc. d/b/a Dauphin Electric have been joined herein to protect the rights of indemnity of Defendant Comfort Tech, Inc. WHEREFORE, Defendant Comfort Tech, Inc. demands that any judgment in favor of the Plaintiff be entered solely against Defendants D.L. Heiges Electrical Services, Inc., Lewis R. Sunkel and Dauphin Associates, Inc. d/b/a Dauphin Electric. In the alternative, Defendant Comfort Tech, Inc. demands that in the event that judgment is entered against it, any liability on its part being specifically denied, such judgment should be entered jointly and severally against Defendants D.L. Heiges Electrical Services, Inc., Lewis R. Sunkel and Dauphin Associates, Inc. d/b/a Dauphin Electric, together with Defendant Comfort Tech, Inc., or that Defendants D.L. Heiges Electrical Services, Inc., Lewis R. Sunkel and Dauphin Associates, Inc. d/b/a Dauphin Electric be held liable over to Defendant Comfort Tech, Inc. for contribution and/or indemnity. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS By: THOMAS B. SPONAUGLE, ESQUIRE Supreme Court I.D. #64584 Attorney for Defendant Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, VS. No. 2005-03894 CIVIL CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED VERIFICATION I verify that the foregoing facts are true and correct, upon my personal knowledge or information and belief. This verification is made subject to the penalties of IS Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: -l US CINDY LER COMFORT TECH, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, No. 2005-03894 CIVIL VS. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, : INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this ?` t day of? rY?ti 2005, I, Thomas B. Sponaugle, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Answer, New Matter and Cross Claim of Defendant Comfort Tech, Inc. by United States Mail, addressed to the party or attorney of record as follows: Heidi van Steenburgh, Esquire White and Williams LLP 1800 One Liberty Place Lewis R. Sunkel Philadelphia, PA 19103 21 Farm House Lane (Counsel for Plaintiff) Camp Hill, PA 17011 Thomas E. Brenner, Esquire Dauphin Associates, Inc. d/b/a Dauphin Goldsberg Katzman Electric 320 Market Street, Strawberry Square 1830 South 19`h Street P.O. Box 1268 Harrisburg, PA 17104 Harrisburg, PA 17108 (Counsel for D.L. Heiges Electrical) GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS By: THOMAS &rSreendant 584 ES(lUlKr Sup reme Court 584 Attorney for De Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 r7 °; i ?] ri ?. r ;_ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, VS. No. 2005-03894 CIVIL CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Kindly withdraw the Preliminary Objections of Defendant Comfort Tech, Inc. to Plaintiff's Complaint in the above-captioned matter. Respectfully submitted, By: GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS THOMAS B. Sy g,41,E, ESQUIRE Supreme Court I.D. #64584 Attorney for Defendant Comfort Tech, hic. 110 South Northern Way York, PA 17402 (717) 757-7602 ti IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, COMPANY, Plaintiff, VS. No. 2005-03894 CIVIL CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this ? day of 2005, I, Thomas B. Sponaugle, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Praecipe to Withdraw Preliminary Objections by United States Mail, addressed to the party or attorney of record as follows: Heidi van Steenburgh, Esquire White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 (Counsel for Plaintiff) Thomas E. Brenner, Esquire Goldsberg Katzman 320 Market Street, Strawberry Square P.O. Box 12(8 Harrisburg, PA 17108 (Counsel for D.L. Heiges Electrical) Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Dauphin Associates, Electric 1830 South 19'h Street Harrisburg, PA 17104 Inc. d/b/a Dauphin GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALIrINS _ , By: Supreme Court f'D. #64584 Attorney for Defendant Comfort Tech, Inc. 110 South Northern Way York, PA 17402 (717) 757-7602 ._J . 1 1? ?? 1 ? ? _ ? `??? - ?_ ?A1 (a? ? ?_ ?`? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE, No. 2005-03894 CIVIL COMPANY, Plaintiff, VS. CIVIL ACTION - LAW D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. JURY TRIAL, DEMANDED STIPULATION AND, NOW, this ' Y JV day of NL R r6 rL r , 2005, it is agreed between Heidi van Steenburgh, Esquire, counsel for the Plaintiff, and Thomas B. Sponaugle, Esquire, counsel for Defendant Comfort Tech, Inc., that the language referenced in Paragraph 52 of the Complaint, specifically "but are not limited to ; Paragraph 52(o) specifically "otherwise failing to perform their work in a good and workmanlike manner'; and Paragraph 61 specifically otherwise failing to perform their work in a good and workmanlike manner" is withdrawn with prejudice. 'iA 'eidi van Steenburgh, Esquire Tho _ 's B ugle, Esquire Attorney for Plaintiff Attorney r efendant Comfort Tech, Inc. r Y L ? . l Vi ? __ i..- , 4 ?,`1 . + .. WHITE AND WILLIAMS LLP Heidi van Steenburgh, Esquire Pennsylvania Bar I.D. 83186 1800 One Liberty Place Philadelphia, PA 19103 215-864-7126 Attorneys for Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2005-03894 CIVIL JURY TRIAL DEMANDED PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE PRELIMINARY OBJECTIONS OF DEFENDANT, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC TO PLAINTIFF'S COMPLAINT Plaintiff Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club by and through its counsel, White and Williams LLP, hereby file these Preliminary Objections to the Preliminary Objections of Defendant, Dauphin Associates, Inc. a/k/a/ d/b/a Dauphin Electric, to Plaintiffs Complaint and in support thereof aver as follows: Plaintiff commenced this action by filing a writ of summons on July 29, 2005. 2. Plaintiff filed its Complaint on October 20, 2005. Plaintiff served the Complaint upon Dauphin Associates by mailing it by first class mail on October 20, 2005. A true and correct copy of the Certificate of Service is attached as Exhibit A to Defendant's Preliminary Objections. DOCS_PH 1828258v.1 On or about November 17, 2005, Dauphin Associates filed Preliminary Objections to Plaintiff's Complaint. A true and correct copy of the letter enclosing Dauphin Associate's Preliminary Objections is attached as Exhibit 1. PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM TO LAW OR RULE OF COURT 5. The Pennsylvania Rules of Civil Procedure allow the filing of preliminary objections to any pleading for failure of such pleading to conform to law or rule of court. See Pa. R.C.P. No. 1028(a)(2). 6. Pursuant to Rule 1026(a) of the Pennsylvania Rules of Civil Procedure, Dauphin Associates had twenty (20) days after service of the Complaint to file its preliminary objections. See Pa. RCP. No. 1026(a). Dauphin Associates filed its preliminary objections 29 days after service of the Complaint, in violation of the Pennsylvania Rules of Civil Procedure. 8. To permit Dauphin's Preliminary Objections to be considered substantively at this juncture would render meaningless the response period established by the Pennsylvania Rules of Civil Procedure. 9. The Preliminary Objections of Dauphin Associates, filed on or about November 17, 2005, were delinquently filed and should be stricken. -2- DOCS_PH 1828258v.] WHEREFORE, in consideration of the foregoing, Plaintiff respectfully requests that this Honorable Court strike the Preliminary Objections filed by Defendant, Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric and order Dauphin Associates to file its Answer to the Complaint within twenty (20) days. Respectfully Submitted, WHITE AND WILLIAMS LLP a Heidi van Steenburgh, Esquire Attorneys for Plaintiff Dated: -3- DOCS_PH 1828258x.1 CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of Plaintiff's Preliminary Objections to the Preliminary Objections of Defendant, Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric to Plaintiffs Complaint was served upon all parties listed below by First Class Mail, postage prepaid: Thomas E. Brenner, Esquire Goldberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Brooks R. Foland, Esquire Thomas, Thomas and Hafer LLP 305 North Front Street Harrisburg, PA 17101 Robert Lerman, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 ?+ W lti'kC-SCk U ?' 1.1 l? 4ei&di'4an Steenburgh Dated: 1?) DOCS_PH 1828258v.1 (*bl- -!L THOMAS, THOMAS & HAFER LLP ATTORNEYS AT LAW Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Street Address: 305 North Front Street, Harrisburg, PA 17101 Phone: (717) 237-7100 Fax: (717) 237-7105 November 17, 2005 Heidi van Steenburgh, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 Re: Massachusetts Bay v. Dauphin Associates, et al. No. 01-2912 Dear Ms. van Steenburgh: www.tthlaw.com Brooks R. Foland (7J7) 255-7626 bfoland@tthlaw.com Enclosed is Defendant Dauphin Associate's Preliminary Objections in the above matter. If you have any questions or wish to discuss the matter, please feel free to call at your convenience. Very truly yours, THOMAS; S do HAMR, LLP BRF/cmp392348.1 Enclosure cc: Thomas E. Brenner, Esq. (w/encl.) Brooks R. Foland Bethlehem Office - 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 + Fax: (610) 868-1702 Pittsburgh Office • 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 • Phone: (412) 697-7403 • Fax: (412) 697-7407 ?-..? \'_! 1 ''' ' ('_` 1. Thomas E. Brenner, Esquire Goldberg Katzman, P.C. PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for D.L. Heiges Electric MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 2005-03894 V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES,: INC., DAUPHIN ELECTRIC, and COMFORT TECH, INC., Defendants CIVIL ACTION - LAW REPLY OF DEFENDANT D.L. HEIGES ELECTRICAL SERVICES, INC. TO NEW MATTER OF DEFENDANT COMFORT TECH, INC. AND NOW, comes Defendant D.L. Heiges Electrical Services, Inc., by their attorneys, Goldberg Katzman, P.C., who states: 70. Objection. This paragraph violates the Pennsylvania Rules of Civil Procedure by seeking to incorporate 69 paragraphs into a single paragraph. To the extent an answer is deemed necessary, the paragraph is denied. 71. Denied. The paragraph states a series of legal conclusions to which no response is necessary. 72. Denied. The paragraph states a series of legal conclusions to which no response is necessary. 4 73. Denied. The paragraph states a series of legal conclusions to which no response is necessary. WHEREFORE, Defendant D.L. Heiges Electrical Services, Inc. requests that the New Matter and Cross-claim of Defendant Comfort Tech, Inc. be dismissed, with prejudice. GOLDBERG I ATZMAN, P.C. By: Thomas E. Brenner, Esquire Attorney ID #32085 PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for Defendant D.L. Heiges Electrical Services, Inc. Date: December 7, 2005 129197.1 VERIFICATION I, Thomas E. Brenner, Esquire, hereby acknowledge that I am the attorney for D.L. Heiges Electrical Services, Inc.; that I have read the foregoing document; that there are no new facts of record contained in the document; and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Thomas E. Brenner, Esquire Date: December 7, 2005 103407.1 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Code, by depositing a copy of same in the United States mail, at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Heidi van Steenburgh, Esquire White & Williams One Liberty Place, Suite 1800 Philadelphia, PA 19103 Robert Lehrman, Esquire Griffith Strickler 110 S. Northern Way York, PA 17402-3737 Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Brooks R. Foland, Esquire Thomas, Thomas & Hafer PO Box 999 Harrisburg, PA 17108-0999 /GOOLLD?BERG I-ATZMAN, P.C. By,: Thomas E. Brenner, Esquire Date: December 7, 2005 ,., ?'_ WHITE AND WILLIAMS LLP Heidi van Steenburgh, Esquire Pennsylvania Bar I.D. 83186 1800 One Liberty Place Philadelphia, PA 19103 215-864-7126 Attorneys for Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2005-03894 CIVIL JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club by and through its counsel, White and Williams LLP, hereby files its Reply to the New Matter of Defendant D. L. Heiges Electrical Services, Inc. in accordance with the numbering thereof as follows: NEW MATTER DIRECTED TO PLAINTIFF 63. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 64. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 65. Denied. It is specifically denied that the aforesaid fire arose from the negligence on the part of persons or entities not named in this litigation. In further response, Paragraph 65 is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 66. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. DOCS_PH 1819557v.I 67. Denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 68. Denied. It is specifically denied that no actions of Defendant D. L. Heiges Electrical Services caused the fire referred to in the Complaint. WHEREFORE, Plaintiff hereby demands judgment against all Defendants in an amount in excess of $100,000 plus interest, attorneys fees, costs and such other and further relief as this Court deems appropriate. NEW MATTER PURSUANT TO 2252(D) D. L. HEIGES ELECTRICAL SERVICES, INC. V. LEWIS R. SUNKEL, DAUPHIN ASSOCIATES a/k/a bldla DAUPHIN ELECTRIC AND COMFORT TECH. INC. 69-70. Paragraphs 69 and 70 of D. L. Heiges' Answer with New Matter are not directed to Plaintiff, therefore, no response is required under the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiff hereby demands judgment against all Defendants in an amount in excess of $100,000 plus interest, attorneys fees, costs and such other and further relief as this Court deems appropriate. Respectfully Submitted, WHITE AND WILLIAMS LLP Heidi van Steenburgh, Esquire Attorneys for Plaintiff Dated: 10-0zh -2- DOCS_PH 1819557v.1 VERIFICATION I, Dean Peterson, a duly authorized representative of Massachusetts Bay Insurance Company, verify that the statements made in this Reply to New Matter are true and correct to the best of my knowledge, information and belief. I understand that I am making these statements subject to the penalties of 18 Pa. C. S. § 4904, relating to unworn falsification to authorities. Dean Peterson Dated: DOCS_PH 1819557v.1 CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of the foregoing document was served upon all parties listed below by First Class Mail, postage prepaid: Thomas E. Brenner, Esquire Goldberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Brooks R. Foland, Esquire Thomas, Thomas and Hafer LLP 305 North Front Street Harrisburg, PA 17101 Robert Lerman, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 Heidi van Steenburgh Dated: la-?a- C) S DOCS_PH 1819557v.1 T..` ( ?? (" ? t .. ,,.,.. 'l •. ? +i ?_ J VERIFICATION ,xD?1S_ ?g'i ?l I, Dean Peterson, a duly authorized representative of Massachusetts Bay Insurance Company, verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that I am making these statements subject to the penalties of 18 Pa. C. S. § 4904, relating to unswom f ification to authorities. Dean Peterson Dated: ?oWJ -12- DOCS_PH 1589008vl ?.' ?. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Phone: 215.864.7000 Fax: 215.864 7123 W Heidi van Steenburgh Direct Dial. 215.864.7126 Direct Fax. 215.789. 7638 vansteenburghh@whiteandwilliams.com December 8, 2005 Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17103 RE. Massachusetts Bay Insurance Company, a/s/o The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club v. D.L. Heiges Electrical Services, Inc. and Lewis R. Sunkel, et al No. 2005-03894 Dear Sir/Madam: Enclosed please find the original executed verification to be attached to our complaint. Thank you for your attention to this matter. Very truly yours, HvS:ac Enclosure cc: Lew Sunkel (with enclosure) Thomas E. Brenner, Esquire (with enclosure) Brooks R. Foland, Esquire (with enclosure) Thomas Sponaugle, Esquire (with enclosure) WHITE AND WILLIAMS LLP By: Heidi van Steenburgh Allentown, PA • Berwyn, PA • Cherry Hill, N? New York, NY • Paramus, NJ • Pittsburgh, PA • Wilmington, DE DOCS_PH 1828996v.1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, V. D.L. HEIGES ELECTRICAL SERVICES, INC. and LEWIS R. SUNKEL and DAUPHIN ASSOCIATES, INC. d/b/a DAUPHIN ELECTRIC and CIVIL ACTION NO: 2005-03894 CIVIL COMFORT TECH, INC. PLAINTIFF'S REPLY TO THE NEW MATTER AND CROSS-CLAIM OF DEFENDANT, COMFORT TECH Plaintiff, Massachusetts Bay Insurance Company as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, by and through its counsel, White and Williams LLP, responds to the Answer, New Matter and Cross-Claim of Defendant, Comfort Tech, as follows: NEW MATTER 63. Paragraphs 1 through 61 of Plaintiff's Complaint are, incorporated herein as though same were fully set forth at length herein. 64. Denied. It is specifically denied that the Complaint fails to state a claim upon which relief can be granted. By way of further response, the averments contained in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 65. Denied. It is specifically denied that the Complaint may be barred by the applicable statute of limitations. By way of further response, the averments contained in this -1- DOCS_PH 1828541v.1 w paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 66. Denied. It is specifically denied that Plaintiff's damages were caused solely and directly as a result of individuals or entities other than Defendant, Comfort Tech, and over whom Comfort Tech has no responsibility or control. By way of further response, the averments contained in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 67. Denied. It is specifically denied that Plaintiffs damages were caused solely and directly as a result of the negligence of the Plaintiff which consisted of the following: a. Failing to properly maintain the electrical system and components; b. Failing to properly use the electrical system and components. By way of further response, the averments contained in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 68. Denied. It is specifically denied that Plaintiff failed to mitigate its damages. By way of further response, the averments contained in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 69. Denied. It is specifically denied that Plaintiff has recovered from the damages sustained as a result of this incident. On the contrary, Plaintiff paid its insured for the damages sustained as a result of this incident and now seeks to recover from the responsible parties named in this lawsuit. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, requests that the new matter of Defendant, Comfort Tech, be denied and judgment entered in Plaintiff s favor. -2- DOCS_PH 1828541v.1 2252(d) NEW MATTER TO DEFENDANTS D.L. HEIGES ELECTRICAL SERVICES. INC.. LEWIS R. SUNKEL AND DAUPHIN ASSOCIATES d(b/a DAUPHIN ELECTRIC 70. Paragraphs 63 through 69 of Plaintiff's Reply to the New Matter and Cross-Claim of Defendant, Comfort Tech, are incorporated herein as though same were fully set forth at length herein. 71-73 Denied. The averments of Paragraphs 71 through 73 are not directed to Plaintiff, therefore, no response is required under the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, requests that the new matter of Defendant, Comfort Tech, be denied and judgment entered in Plaintiff's favor. WHITE AND WILLIAMS LLP By. i .? 'C rl W l* Heidi van Steenburgh _ Attorneys for ]Plaintiff Dated: -A 105 -3 1828541x.1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Plaintiff s Reply to the New Matter and Cross-Claim of Defendant, Comfort Tech, Inc. was mailed by U.S. First Class Mail postage prepaid to: Lewis Sunkel Thomas E. Bremner, Esquire 21 Farm House Lane Goldberg Katzman, P.C. Camp Hill, PA 17011 P.O. Box 1268 Harrisburg, PA 17108-1268 Brooks R. Foland, Esquire Thomas, Thomas and Hafer LLP Thomas Sponaugle, Esquire 305 North Front Street Griffith, Strickler, Lerman, Solymos & Calkins Harrisburg, PA 17101 110 South Northern Way York, PA 1740:2 Heidi van Steenburgh Date: -5- DOCS_PH 1828541v.1 05 17 w, I ' PA VERIFICATION 1, Dean Peterson, a duly authorized representative of Massachusetts Bay Insurance Company, verify that the statements made in this Reply to the New Matter and Cross-Claim of Defendant.. Comfort Tech, are true and correct to the best of my knowledge, information and belief. I understand that I am making these statements subject to the penalties of 18 Pa. C. S. § 4904, relating to unswom falsification to authorities. Dean Peterson Dated: -a teliff -- L -4- DQCS Pia 1828541x.1 v THOMAS, THOMAS & HAFER, LLP by: Brooks R. Foland, Esquire I.D. No. 70102 Thomas S. Brumbaugh, Esquire I.D. No. 89037 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Dauphin Associates, Inc., a/k/a d/b/a (717) 255-7626 Dauphin Electric MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of the Fitness Company, Inc. d/b/a Alpha Racquetball Fitness Club, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY os 301 No.: 0*:VI-TCIVIL TERM JURY TRIAL DEMANDED DEFENDANT, DAUPHIN ASSOCIATES, INC., A/K/A D/B/A DAUPHIN ELECTRIC'S REPLY TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT DAUPHIN ASSOCIATES, INC., A/K/A D/B/A DAUPHIN ELECTRIC'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Dauphin Associates, Inc., a/k/a d/b/a Dauphin Electric (hereinafter "Dauphin"), by and through its attorneys, Thomas, Thomas & Hafer, LLP, and files the following Reply to Plaintiff s Preliminary Objections to Dauphin's Preliminary Objections to Plaintiff s Complaint as follows: Admitted. 2. Denied. To the contrary, Plaintiffs Complaint was filed on October 21, 2005. 3. Admitted in part, denied in part. Defendant, Dauphin only admits that the Certificate of Service attached to Plaintiffs Complaint is dated October 20, 2005. The Certificate of Service is a written document and it speaks for itself. 4. Admitted. By way of further answer, Defendant, Dauphin's Preliminary Objections to Plaintiff s Complaint were filed on November 17, 2005. 5. Admitted. 6. Admitted in part, denied in part. Defendant, Dauphin admits that pursuant to Pa.R.C.P. 1026(a), every pleading subsequent to complaint shall be filed within twenty days after service of the preceding pleading, but no pleading needs to be filed unless the preceding pleading contains a Notice to Defend or is endorsed with a Notice to Plead. Pa.R.C.P. 1026(a). The copy of the Plaintiffs Complaint that was received by counsel for Defendant, Dauphin, did not contain a Notice to Defend, and as such, no response was required by Defendant, Dauphin. A Notice to Defend was attached to Plaintiffs Complaint that was attached as Exhibit "A" of the Preliminary Objections of Defendant, Comfort Tech, Inc. At this time, counsel for Defendant, Dauphin does not know why a Notice to Defend was not attached to the copy of Plaintiffs Complaint received by counsel for Defendant, Dauphin. Furthermore, Defendant, Dauphin's preliminary objections to Plaintiffs Complaint were filed only two days after counsel's entry of appearance in this action. 7. Denied. Furthermore, Defendant, Dauphin's Preliminary Objections to Plaintiff's Complaint were filed and served upon Plaintiff on November 17, 2005. Pursuant to Pa.R.C.P. 1026(a), Plaintiffs preliminary objections to Defendant's preliminary objections were to be filed within 20 days of service of Defendant's preliminary objections. Pursuant to Pa.R.C.P. 440(b), 2 service of Defendant's preliminary objections was complete upon mailing, or November 17, 2005. Plaintiff did not file its preliminary objections to Defendants preliminary objections until December 8, 2005, 21 days after service. Plaintiff s preliminary objections should be denied for the very reasons set forth in its preliminary objections. 8. Denied. To the contrary, Plaintiff was already aware of the issues that are the subject of Defendant, Dauphin's preliminary objections, as similar preliminary objections were filed on behalf of Defendant, Comfort Tech, Inc. Plaintiff is not prejudiced in any way by any delay in the filing of preliminary objections to Plaintiffs Complaint. 9. Denied. Furthermore, Plaintiffs preliminary objections to Defendant, Dauphin's Preliminary Objections were delinquently filed and should be stricken. WHEREFORE, Defendant Dauphin respectfully requests this Honorable Court deny Plaintiffs preliminary objections to Defendant, Dauphin's Preliminary objections and grant its preliminary objections and strike/dismiss Counts Eight and Nine of Plaintiffs Complaint, strike paragraph 52(0), the phrase "and/or other liability producing conduct" of Paragraphs 53 and 57 of Plaintiffs Complaint, and the phrase "and otherwise failing to perform [its] work in a good and workmanlike manner" of Paragraph 61 of Plaintiffs Complaint, in regards to Defendant Dauphin, with prejudice, or, in the alternative, order Plaintiff to plead with specificity what constitutes this other failure or conduct. 3 Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: December 15, 2005 by: u Thomas S. Brumbaugh, Esqu"" I.D. No. 89037 / Brooks R. Foland, Esquire I.D. No. 70102 305 North Front Street, 6th Floor Attorneys for Defendant, Dauphin P.O. Box 999 Associates, Inc., a/k/a d/b/a Harrisburg, PA 17108-0999 Dauphin Electric (717) 255-7626 CERTIFICATE OF SERVICE AND NOW, this 15`x' day of December, 2005, I, Thomas S. Brumbaugh, Esquire, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Heidi van Steenburgh, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 Attorneys for Plaintiff Thomas E. Brenner, Esq. Goldberg Katzman P.O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Defendant, D. L. Heiges Electrical Service, Inc. Thomas B. Sponaugle, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 S. Northern Way York, PA 17402-3737 Attorneys for Defendant, Comfort Tech, Inc. Lewis R. Sunkel 21 Farm House Lane Camp Hill, Pa 17011 Defendant THOMAS, THOMAS & HAFER, LLP Thomas S. Brumbaug ?_ C. 'T't. ?_?:, t . C??,. c ''_' O <J y. ? it -_? (? 1_ -{t l7 ???' _ ??l ?_??? ?) '< C:') THOMAS, THOMAS & HAFER, LLP by: Brooks R. Foland, Esquire I.D. No. 70102 Thomas S. Brumbaugh, Esquire I.D. No. 89037 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7626 Attorneys for Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric MASSACHUSETTS BAY INSURANCE COMPANY, AS SUBROGEE OF THE FITNESS COMPANY, INC. d/b/a ALPHA RACQUETBALL AND FITNESS CLUB, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC AND COMFORT TECH, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NCI. 2005-03894 CIVIL JURY TRIAL DEMANDED DEFENDANT, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC'S REPLY TO 2252(d) NEW MATTER OF DEFENDANT. COMFORT TECH, INC. 70. Defendant, Dauphin Associates, Inc. a/k/a d/b/a. Dauphin Electric (hereinafter "Dauphin") incorporates herein by reference, as if quoted in their entirety, the averments and denials contained within its Answer with New Matter and Cross Claims to Plaintiff's Complaint which will be filed in this matter. 71. Denied as a conclusion of law to which no response is required. By way of further answer, Defendant Dauphin specifically denies that the damages complained of were caused by Defendant Dauphin. 72. Denied as a conclusion of law to which no response is required. By way of further answer, Defendant Dauphin specifically denies that Defendant, Comfort Tech, Inc. is entitled to indemnification or contribution. Defendant Dauphin also specifically denies that it is alone liable, liable over or jointly and severally liable to Plaintiff. 73. Denied as a conclusion of law to which no response is required. By way of further answer, Defendant Dauphin specifically denies that Defendant, Comfort Tech, Inc. is entitled to indemnity. WHEREFORE, Defendant Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric respectfully requests that judgment be entered in its favor and against all other parties. Respectfully submitted, Date: December 15, 2005 by: THOMAS, THOMAS & HAFER, LLP Brooks R. Foland, Esquire / I.D. No. 70102 v Thomas S. Brumbaugh, Esquire I.D. No. 89037 305 North Front Street, 6`h Floor P. O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7626 2 VERIFICATION The undersigned, having read the attached document, hereby verifies that the attached pleading is based on information which has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel. Furthermore, the matters contained in this pleading are of a procedural nature only among counsel and the court. The undersigned verifies that he has read the attached pleading and that it is true and correct to the best of his information and belief. This Verification is made subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. Thomas S. Brumbaugh v „i CERTIFICATE OF SERVICE AND NOW, this 15'' day of December, 2005, I, Thomas S. Brumbaugh, Esquire, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Heidi van Steenburgh, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 Attorneys for Plaintiff Thomas E. Brenner, Esq. Goldberg Katzman P.O. Box 1268 Harrisburg, PA 17108-1268 Attorneys for Defendant, D. L. Heiges Electrical Service, Inc. Thomas B. Sponaugle, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 S. Northern Way York, PA 17402-3737 Attorneys for Defendant, Comfort Tech, Inc. Lewis R. Sunkel 21 Farm House Lane Camp Hill, Pa 17011 Defendant THOMAS, THOMAS & HAFER, LLP Thomas S. Brumbaugh G v ,, ? o Gl? -T1 ?1! (1 C`i rpn r _ co PRAECIPE FOR LISTING CASE FOR ARGUMENT (Mast be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) MASSACHUSETTS BAY INSURANCE COMPANY, AS SUBROGEE OF THE FITNESS COMPANY, INC. d/b/a ALPHA RACQUETBALL AND FITNESS CLUB, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-03894 CIVIL V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC AND COMFORT TECH, INC., Defendant JURY TRIAL DEMANDED State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Defendant Dauphin Associates Inc a/k/a d/b/a Dauphin Electric's Preliminary Obiections 2. Identify counsel who will argue cases: (a) for plaintiff: Heidi van Steenburgh Esq._White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 (Name and Address) (b) for defendant Dauphin Associates: Brooks R Foland Esquire Thomas Thomas & Hafer LLP POB 999, Harrisburg, PA 17108 (Name and Address) for defendant D.L. Heiges: Thomas E Brenner Esq Goldberg Katzman POB 1268 Harrisbure, PA 17108-1268 for defendant Comfort Tech: Thomas B Sponaugle Esq Griffith Strickler Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January11, 2006 Signature _ Brooks R.Foland Print your name Defendant Dauphin Associates Date: December 19, 2005 Attorney for CERTIFICATE OF SERVICE AND NOW, this l day of 200_, I, Coleen M. Polek, 'rnC of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Heidi van Steenburgh, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 Thomas E. Brenner, Esq. Goldberg Katzman POB 1268 Harrisburg, PA 17108-1268 Thomas B. Sponaugle, Esq. Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 Coleen M, Polek r? ? ,? ?-? -:, `? 'l` si _ r ;Il'? p ice? !.:i ?3 ' . ?-? _? v^ +Y° . . Ill r y -;. ?? ...1 ? ? ?i l a: ?1 MASSACHUSETTS BAY INSURANCE IN THE COURT OF COMMON PLEAS OF AS SUBROGEE OF THE FITNESS CUMBERLAND COUNTY, PENNSYLVANIA COMPANY, INC., D/B/A ALPHA RACQUETBALL AND FITNESS CLUB, PLAINTIFF V. D.L. HEIGES ELECTRICAL SERVICES,: INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC., A/K/A D/B/A DAUPHIN ELECTRIC AND COMFORT TECH, INC., DEFENDANTS 05-3894 CIVIL TERM I- ORDER OF COURT AND NOW, this day of January, 2006, upon request of counsel, the argument scheduled for January 11, 2006, IS CANCELLED. By the Court, Edgar B. Bayley, J. Heidi Van Steenburgh, Esquire For Plaintiff Thomas E. Brenner, Esquire For D.L. Heiges Electrical Se Thomas B. Sponaugle, Esquire For Comfort Tech, Inc. Brooks R. Foland, Esquire For Dauphin Associates, Inc. Court Administrator Inc. sal }. ?,rJ cr' U's C `i -:. ... ?.; iG _ i ;I'LL ?' -'J !t_ O c.-. _ is ? c.i C 1 WHITE AND WILLIAMS LLP Ken Grear, Esquire Pennsylvania Bar I.D. 81608 1800 One Liberty Place Philadelphia, PA 19103 215-864-7126 MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, Plaintiff V. Attorneys for Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. dlbla Alpha Racquetball and Fitness Club COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2005-03894 CIVIL JURY TRIAL DEMANDED D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club„ in the above-captioned matter. B Dated: DOCS_PH 1835723v.1 WHITE AND WILLIAMS, LLP 1 CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of the foregoing document was served upon all parties listed below by First Class Mail, postage prepaid: Thomas E. Brenner, Esquire Goldberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Brooks R. Foland, Esquire Thomas, Thomas and Hafer LLP 305 North Front Street Harrisburg, PA 17101 Robert Lerman, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 Kenn Grear Dated: 06 DOCS_PH 1842749v.1 r..? _. ? ? ? _... r._ [.. _. Y- WHITE AND WILLIAMS LLP Heidi van Steenburgh, Esquire Pennsylvania Bar I.D. 83186 1800 One Liberty Place Philadelphia, PA 19103 215-864-7126 BAY COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2005-03894 CIVIL JURY TRIAL DEMANDED WITHDRAWAL OF APPEARANCE Kindly withdraw my appearance on behalf of Plaintiff, Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club„ in the above-captioned matter. WHITE AND WILLIAMS, LLP Dated: 'r Attorneys for Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club By: Heidi van Steenburgh, Esquire DOCS_P11 1835723v.1 CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of the foregoing document was served upon all parties listed below by First Class Mail, postage prepaid: Thomas E. Brenner, Esquire Goldberg Katzman 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 Brooks R. Foland, Esquire Thomas, Thomas and Hafer LLP 305 North Front Street Harrisburg, PA 17101 Robert Lerman, Esquire Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 Dated: - 1(9 Kenn B. Grear DOCS_PH 1842749v.1 ?? /? ' .1 .-$ TO CA] (ent MA CO: FIT RAI V. D.L IN( ASS EL] Stat PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) I'HE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. ----------------------------------------------------------------------------------------------------------. 'TION OF CASE ire caption must be stated in full) SSACHUSETTS BAY INSURANCE IN THE COURT OF COMMON PL "ANY, AS SUBROGEE OF THE CUMBERLAND COUNTY, PENNS NESS COMPANY, INC. d/b/a ALPHA _-QUETBALL AND FITNESS CLUB, NO. 2005-03894 CIVIL Plaintiff . HEIGES ELECTRICAL SERVICES, '., LEWIS R. SUNKEL, DAUPHIN ;OCIATES, INC. a/k/a d/b/a DAUPHIN ?,CTRIC AND COMFORT TECH, INC., Defendant JURY TRIAL DEMANDED e matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric's Preliminary Objecti 2. Identify counsel who will argue cases: (a) for plaintiff: Kenneth Grear, Esq_White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 (Name and Address) (b) for defendant Dauphin Associates: Brooks R. Foland, Esquire, Thomas, Thomas & Hafer, LLP, POB 999, Harrisburg, PA 17108 (Name and Address) for defendant D.L. Heiges: Thomas E. Brenner, Esq. Goldberg Katzman POB 1268 Harrisburg;, PA 17108-1268 for defendant Comfort Tech: Thomas B. Sponau lq. Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 VANIA 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 6, 2006 <E?-? Signature Brooks R. Foland Print your name Defendant Dauphin Associates Date: November 2, 2006 Attorney for s CERTIFICATE OF SERVICE - n4 AND NOW, this & day of &-?? , 204, I, Coleen M. P of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Kenneth Grear, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103 Thomas E. Brenner, Esq. Goldberg Katzman POB 1268 Harrisburg, PA 17108-1268 Thomas B. Sponaugle, Esq. Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 Coleen M. Polek t T?J `' ?? ._; ?r `-' +?? {..' -..! t' °J _ ? ? { ..? 'j ?,, ? MASSACHUSETTS BAY INSURANCE COMPANY, AS SUBROGEE OF THE FITNESS COMPANY, INC. d/b/a ALPHA RACQUETBALL AND FITNESS CLUB, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC AND COMFORT TECH, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-03894 CIVIL JURY TRIAL DEMANDED STIPULATION TO DISCONTINUE AS TO LESS THAN .ALL DEFENDANTS The undersigned, counsel for the parties in the above matter, hereby stipulate and agree, pursuant to Pa.R.C.P. 229(b), to the dismissal of this action as to Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric without prejudice. It is further stipulated that separate signature pages for counsel may be appropriately attached to the aforesaid stipulation, and that the case caption be amended tQ renye p Defendants Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric. iams LLP I800(One Liberty Place Philadelphia, PA 19103-7395 Counsel for Plaintiff Date: Brooks R. Toland, FOq' Thomas, Thomas & Hafer, LLP 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 Counsel for Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric Date: 1/ ?- 6g Thomas E. Brenner, Esq. Goldberg Katzman POB 1268 Harrisburg, PA 17108-1268 Counsel for D.L. Heiges Electric Date: Thomas B. Sponaugle, Esq. Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 Counsel for Comfort Tech Date: MASSACHUSETTS BAY INSURANCE COMPANY, AS SUBROGEE OF THE FITNESS COMPANY, INC. d/b/a ALPHA RACQUETBALL AND FITNESS CLUB, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC AND COMFORT TECH, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-03894 CIVIL JURY TRIAL DEMANDED STIPULATION TO DISCONTINUE AS TO LESS THAN A.LI, DEFENDANTS The undersigned, counsel for the parties in the above matter, hereby stipulate and agree, pursuant to Pa.R.C.P. 229(b), to the dismissal of this action as to Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric without prejudice. It is further stipulated that separate signature pages for counsel may be appropriately attached to the aforesaid stipulation, and that the case caption be amended to remove Defendants Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric. Kenneth B. Grear, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Counsel for Plaintiff Date: Brooks R. Foland, Esq. Thomas, Thomas & Hafer, LLP 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 Counsel for Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric 1 Thomas . Brenner, Esq. Goldberg Katzman POB 1268 Harrisburg, PA 17108-1268 Counsel for D.L. Heiges Electric Date: / /? e+ G Thomas B. Sponaugle, Esq. Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 Counsel for Comfort Tech Date: Date: . MASSACHUSETTS BAY INSURANCE COMPANY, AS SUBROGEE OF THE FITNESS COMPANY, INC. d/b/a ALPHA RACQUETBALL AND FITNESS CLUB, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC AND COMFORT TECH, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-03894 CIVIL JURY TRIAL DEMANDED STIPULATION TO DISCONTINUE AS TO LESS THAN ALL DEFENDANTS The undersigned, counsel for the parties in the above matter, hereby stipulate and agree, pursuant to Pa.R.C.P. 229(b), to the dismissal of this action as to Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric without prejudice. It is further stipulated that separate signature pages for counsel may be appropriately attached to the aforesaid stipulation, and that the case caption be amended to remove Defendants Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric. Kenneth B. Grear, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Counsel for Plaintiff Date: Brooks R. Foland, Esq. Thomas, Thomas & Hafer, LLP 305 N. Front Street POB 999 Harrisburg, PA 17108-0999 Counsel for Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric Date: Thomas E. Brenner, Esq. Goldberg Katzman POB 1268 Harrisburg, PA 17108-1268 Counsel for D.L. Heiges Electric Date: Thomas B. naugle, Esq. Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 Counsel for Comfort Tech Date: ?? ?P Vii'?9 .? 35, V 4 -'1 `ri p C MASSACHUSETTS BAY INSURANCE COMPANY, AS SUBROGEE OF THE FITNESS COMPANY, INC. d/b/a ALPHA RACQUETBALL AND FITNESS CLUB, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC AND COMFORT TECH, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-03894 CIVIL JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS TO THE PROTHONOTARY: Please withdraw the Preliminary Objections of Defendant Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric in the above matter. Respectfully submitted, THOMAS THOMAS & HAFER, LLP by: Brooks R. Foland, Esquire I.D. No. 70102 305 North Front Street, 6t' Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 Attorneys for Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric 465786.1 . L CERTIFICATE OF SERVICE 7? , 200?gI, Coleen M. Polek, of the AND NOW, this A F day of L0 law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Kenneth B. Grear, Esq. White and Williams LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Thomas E. Brenner, Esq. Goldberg Katzman POB 1268 Harrisburg, PA 17108-1268 Thomas B. Sponaugle, Esq. Griffith, Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 6-?Y? Coleen M. Polek N rt:, v ,?h r A t t 46 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-03894 CIVIL JURY TRIAL DEMANDED ORDER ?h 1 AND NOW this day of Q t t'W4 (,V , 2006, upon consideration of ?-'l 5 NOV 302006 /?/Y MASSACHUSETTS BAY INSURANCE COMPANY, AS SUBROGEE OF THE FITNESS COMPANY, INC. d/b/a ALPHA RACQUETBALL AND FITNESS CLUB, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC AND COMFORT TECH, INC., Defendant the Stipulation to Discontinue as to Less than All Defendants, it is hereby ORDERED and DECREED that Defendants Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric are hereby dismissed from the action without prejudice. It is further ORDERED that the case caption be amended to remove Defencants Dauphin Associates, Inc. a/k/a d/b/a Dauphin Electric. By the Court: 1 o J AIDS, c I :0 kv 9- 030 goon ?f WHITE AND WILLIAMS LLP Kenneth B. Grear, Esquire Pennsylvania Bar I.D. 81608 1800 One Liberty Place Philadelphia, PA 19103 215-864-6296 MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. Attorneys for Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2005-03894 CIVIL JURY TRIAL DEMANDED WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of the plaintiff, Massachusetts Bay Insurance Company in the above-captioned case. Respectfully LLP By: for Plaintiff, isetts Bay Insurance Date: _ 2 - 9? PHLDMS 1 3119858v.1 N P° . .r.= WHITE AND WILLIAMS LLP William H. Lynch, Jr., Esquire Pennsylvania Bar I.D. 39874 1800 One Liberty Place Philadelphia, PA 19103 215-864-7064 MASSACHUSETTS BAY INSURANCE COMPANY, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club, Plaintiff V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC. a/k/a d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. Attorneys for Massachusetts Bay Insurance Company, as subrogee of The Fitness Company, Inc. d/b/a Alpha Racquetball and Fitness Club COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 2005-03894 CIVIL JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of the plaintiff, Massachusetts Bay Insurance Company in the above-captioned case. Date: ; 07 Respectfully submitted, IT D I LIAMS, LLP By: William H. L ch, Esquire Attorney for Plaintiff, Massachusetts Bay Insurance Company PHLDMS 1 3119858v.1 o era a .f - "It IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE COMPANY a/s/o THE FITNESS COMPANY, INC. d/b/a ALPHA RACQUETBALL AND FITNESS CLUB, Plaintiff, VS. D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, and COMFORT TECH, INC. Defendants. No. 2005-03894 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED STIPULATION TO DISCONTINUE AS TO LESS THAN ALL DEFENDANTS The undersigned, counsel for the parties in the above matter, hereby stipulate and agree pursuant to Pa.R.C.P. 229(b), to the dismissal of this action as to Comfort Tech, Inc. without prejudice. It is further stipulated that separate signature pages for counsel may be appropriately attached to the aforesaid Stipulation, and that the case caption be amended to remove Comfort Tech, Inc. William A. Lynch, quire Attorney for_Wai iff w ,,,. Thomas E. Brenner, Esquire Attorney for Defendant D.L. Heiges Electrical Thomas B. W?for<arfgle, Esquire Attorney for Defendant Comfort Tech, Inc. 4' ; A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE COMPANY a/s/o THE FITNESS COMPANY, INC. d/b/a ALPHA RACQUETBALL AND FITNESS CLUB, Plaintiff, VS. D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, and COMFORT TECH, INC. Defendants. No. 2005-03894 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED STIPULATION TO DISCONTINUE AS TO LESS THAN ALL DEFENDANTS The undersigned, counsel for the parties in the above matter, hereby stipulate and agree pursuant to Pa.R.C.P. 229(b), to the dismissal of this action as to Comfort Tech, Inc. without prejudice. It is further stipulated that separate signature pages for counsel may be appropriately attached to the aforesaid Stipulation, and that the case caption be amended to remove Comfort Tech, Inc. William A. Lynch, Esquire Attorney for Plaintiff Tho . Brenner, Esquire Attorney for Defendant D.L. Heiges Electrical Thomas B. Sponaugle, Esquire Attorney for Defendant Comfort Tech, Inc. ?? ?..? ?- `; ??? - N '? - _., C ?,,. -- C ) r ?? ,. ._ ? _, , u KAY 8420(8»Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff, VS. D.L. HEIGES ELECTRICAL SERVICES, INC.,: LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, : INC. d/b/a DAUPHIN ELECTRIC and COMFORT TECH, INC. Defendants. . ORDER ON AND, NOW, TO WIT this lc? day of No. 2005-03894 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED o f% C , 2007, upon consideration of the Stipulation to Discontinue as to Less Than All Defendants, it is hereby ORDERED and DECREED that Defendant Comfort Tech, Inc. is hereby dismissed from this action without prejudice. It is further ORDERED that the case caption be amended to remove Comfort Tech, Inc. BY THE COURT, '*? -? 4 Judge C J AIN S S: I I WV R HU [QOZ -:11Hi -40 33H-110-0,31Y Thomas E. Brenner, Esquire Goldberg Katzman, P.C. PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for D.L. Heiges Electric MASSACHUSETTS BAY INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA Plaintiff NO. 2005-03894 V. D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC., DAUPHIN ELECTRIC, and : CIVIL ACTION - LAW COMFORT TECH, INC., Defendants PRAECIPE Please reinstate the Answer with New Matter and Crossclaim for service upon co- defendant Lewis R. Sunkel. GOLDBERG KATZMAN, P.C. I IV By: C4?? Thomas E. Brenner, Esquire Attorney ID #32085 PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for D.L. Heiges Electric Date: May 21, 2008 L CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Code, by depositing a copy of same in the United States mail, at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: John Encarcion, Esquire White & Williams One Liberty Place, Suite 1800 Philadelphia, PA 19103 GOLDBERG KATZMAN, P.C. ?J ? r B . Thomas E. Brenner, Esquire Date: May 21, 2008 C') N 4 O pC3D _n ?, ' C..._ 5 1 f tT?f - D ray D _ `s C - c) r C Cc) 'V SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03894 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MASSACHUSETTS BAY INSURANCE CO VS DL HEIGES ELECTRICAL SERVICES 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 SUNKEL LEWIS R but was unable to locate Him deputized the sheriff of YORK to wit: in his bailiwick. He therefore serve the within WRIT OF SUMMONS County, Pennsylvania, to On July 8th , 2008 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep York County 48.25 Postage 1.52 86 77 07/08/2008 GOLDBERG KATZMAN So answers: R. Thomas Klin Sheriff of Cumberland County 7_>S_ 08 1i -- Sworn and subscribe to before me this day of A. D. a ? .l COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 Woe v SERVICE CALL (717) 771-%01 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN P'LEAM 12 Cap" 1. PLAINTIFF& 2. C ' NUMBER Magsachusette Bay Insurance Co-pany 2005-3894 (Cutetberland Co.) 4. TYPE OF WRIT OR COMPLAINT 3. DEFENOANTISID.L. Aeiges Electrical Servi-ps; Lewis R. Sunkel; DauphinElectric, Cri--fort Tech. I-e. Notice & Answer SERVE D. NAME OF INDIVIOUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD Lewis R. Sunkel 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT. NO., CITY, BORO. TWP., STATE AND ZIP CODE) AT 21 Fa-m House Lan,-, Canp Hill, Fairview Township, PA 17011 7. INDICATE SERVICE: XPERSONAL U PERSON IN CHARGE XlMEPUTIZE ` CE T._ MAID U 1 ST CLASS MAIL U POSTED U OTHER NOW June 12 2008 I, SHERIFF OF >?IE COUNTY, PA, o hereby depu ' e the sheriff of York COUNTY to execute eke re urnrding to law. This deputization`being made at the request and risk of the plaintiff. SHERIFF OF 1UPCOUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: O/C C1lmberlarid Please mail return of service to Ctunberland County Sheriff. Thank you. ADV FEE PD BY LAW FIRM_ GOLDBERG & KATZMAN PC NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: NA. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same w*xx t a watchman. in custody of whomever is found in possession, after notifying person of levy or attachment, without Iiabiltly on the part of such deputy or the sheriff to any plaintiff heroin for arty loss. destruction. or removal of my property before sheWAA& thereat. 9 3YPE NAMEanddDORESS o fTIDRgNa/ ORIGINATOR IG RE 10. TELEPHONE NUMBER 1 t . DATE FILED s Lr Ifrenner Lrs rP 717-234-4161 X08 4 /1"_? ? J?? PO Box 1268. Harrisburg. PA 171 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). Th-as E. Brenner, Esquire CUMBERLAND COUNTY SHERIFF 1 C OU U S E SQ PO Box 1268, Bar--ieburg, PA 17108-1268 CARLISLE PA 17013 13. 1 acknowledge receipt of On writ 14. DATE RECEIVED 15. Expiration/Hearing Date or complaint as' tinted above. LTMMCG I LL 6 1-4 0 8 7/11/08 16. HOW SERVED: PERSONAL RESIDENCE POSTED( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. 1 hqeby certify and ralum a NOT FOUND because I am unable to locale the individual, company, etc. named above. (See remarks below.) 10 TIT INDIVIDUAL SERVED / L1 7T ADDRESS RE IF NOT SHOWN ABBE (Rekpionshp to DefendsnQ 1$. Date of Service 20. Time of so -.2 eVIL 2 . S Int. Dab Time Mites Int. Dab Time Miles Int. Date Time Miles IM. Dab Tina Miles Int. Date Time Miles Int. 22. REMARKS s s. a-, °a r? . ,. a 23. Advance Costs I 34. Forolga is Service Costs 25. NIF • 26. Mileage, 27. Postage 28. Sub Total 29. Pound 30. Notary '? 35. Advance Costs 36. Service Costs 37. Notary Cert. 38. Found 41. AFFIRMED ??a??ndsubscribed to belloffi me this _Pon=Hi -a 42. day of l9 44. Surefg. 132. Tot. Costs 1 33. Costs Due 39. Total Costs 140. Costs Due or No. rnvrr..- nv nn 46. Sigrlahn of York 147. DAfE NOTARIAL SEAL ?oe LISA L. R) -•'MAN, NOTARY PUBLIC Cr Y r YORK R I C q R D p, K E U E R L B E R _ , YORK 000NTY SHERIFF 7-2-2008 MY C!`' i":'!S IC J s:X IRESAUC:. 12, 2009 48. Signature ofForeign 49. DATE County Sheriff I Thomas E. Brenner, Esquire Goldberg Katzman, P.C. PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for D.L. Heiges Electric MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 2005-03894 D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC., DAUPHIN ELECTRIC, and : CIVIL ACTION - LAW COMFORT TECH, INC., Defendants MOTION TO ENFORCE SUBPOENA AND NOW comes D.L. Heiges Electric ("DLHE") who respectfully submits the following Motion to Enforce Subpoena: On November 17, 2008, DLHE, through the Court of Common Pleas of Cumberland County, Pennsylvania, issued a Subpoena to Attend and Testify ("Subpoena") to Lewis Sunkel. A copy of the Subpoena is attached as Exhibit "A". 2. The Subpoena contains a certification that Mr. Roe was served with the Subpoena on November 28, 2008. 3. Through the Subpoena, the Court of Common Pleas of Cumberland County, Pennsylvania ordered Mr. Sunkel to attend and testify at the offices of Goldberg Katzman, P.C., DLHE's attorneys, on January 12, 2009 at 11:00 AM, and to bring with him certain documents enumerated in the Subpoena. 4. On January 12, 2009, DLHE's attorneys, along with counsel for the Plaintiff in this matter, appeared at the place designated by the Subpoena; however, Mr. Sunkel failed to appear. 5. Mr. Sunkel failed to give notice or excuse for his failure to attend as required by the Subpoena. 6. Mr. Sunkel's failure to respond to DLHE's Subpoena was in bad faith and has prejudiced and will continue to prejudice, DLHE in its ability to prepare its defense to this action. 7. Rule 234.5 of the Pennsylvania Rules of Civil Procedure permits this Court to order Mr. Sunkel to comply with the Subpoena and impose sanctions the Court deems to be appropriate. Counsel for DLHE expended time and incurred costs based on the failure of Sunkel to appear as set forth in Exhibit B. WHEREFORE, the D.L. Heiges Electric respectfully requests that this Honorable Court grant its Motion to Enforce Subpoena and enter an Order directing Lewis Sunkel to attend and testify at deposition within fifteen days from the date of entry of the Court's Order. Further, D.L. Heiges Electric respectfully requests that this Honorable Court enforces sanctions pursuant to Pennsylvania Rule of Civil Procedure 234.5 and grant D.L. Heiges all attorney's fees and costs resulting from Mr. Sunkel's failure to comply with the Subpoena. Goldberg Katzman, P.C. By: Thomas E. Brenner, Esquire Attorney ID #32085 PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 Attorneys for Defendant, D.L. Heiges Electric Date: February 6 , 2009 169943.1 1v1H33Hl,HUNL 1 1 6 BA Y INSURANCE COMPANY, V. D.L. HEIGES ELECTRICAL IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA Plaintiff : NO. 2005-03894 SERVICES, INC., and LEWIS R. : CIVIL ACTION - LAW SUNKEL, Defendants SUBPOENA TO ATTEND AND TESTIFY To: Lewis Sunkel 21 Farmhouse Lane Camp Hill, PA 17011 1. You are Ordered by the Court to come to Goldberg Katzman P C 320 Market Street at Harrisburg, Dauphin County, Pennsylvania on January 12, 2009 at 11 o'clo_ ck AM, to testify on behalf of Defendant DL Heiges Electrical Services Inc in the above case and to remain until excused. 2. And bring with you the following: Anv _ documentation in your possession regarding the work you performed at the Alpha Racquetball and Fitness Club facility If you fail to attend or to produce the documents or things required by the subpoena, you may be subjection to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: Thomas E. Brenner Esguire Address: Goldberg Katzman P C 320 Market Street PO Box 1268 Harrisburg, PA 17108 Telephone: 717-234-4161 Supreme Court ID# 32085 Attorney for: Defendant DL Heiges Electrical Services Inc BY TH CO T: DATE: Prothonotary/C er 1 Division w Deputy MASSACHUSETTS BAY : IN THE COURT OF COMMON PLEAS INSURANCE COMPANY, : CUMBERLAND CO., PENNSYLVANIA Plaintiff NO. 2005-03894 V. D.L. HEIGES ELECTRICAL SERVICES, INC., and LEWIS R. : CIVIL ACTION - LAW SUNKEL, Defendants NOTICE AND ACKNOWLEDGEMENT OF RECEIPT OF SUBPOENA BY MAIL To: Lewis Sunkel The enclosed subpoena is served pursuant to Pennsylvania Rule of Civil Procedure 234.2(b)(3). Complete the acknowledgement part of this form and return the copy of the completed form to the sender in the enclosed self-addressed stamped envelope. Sign and date the acknowledgement. If you are served on behalf of a partnership, unincorporated association, corporation or similar entity, indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive the subpoena, indicate under your signature your authority. Date Notice Mailed: 11/19/08 -yam CO &wvw'nou. Party serving subpoena or Attorney for party ACKNOWLEDGEMENT OF RECEIPT OF SUBPOENA I acknowledge receipt of a copy of t e subpo na in the above-captioned matter. Date: ! 11 aFF112c ignature Relationship to entity or authority to receive the subpoena EXHIBIT B AFFIDAVIT AND NOW, comes Thomas E. Brenner of Goldberg Katzman, P.C., who states: Preparation and attendance of counsel for the deposition of Lewis Sunkel for January 12, 2009 were: 1.2 hours @ $115.00 per hour = $137.00; 2. Stenographer fee for the January 12, 2009 deposition of Lewis Sunkel was $119.40; and 3. Total of fees and costs for the January 12, 2009 deposition of Lewis Sunkel was $256.40. The information is true and correct. Brenner Sworn to and subscribed before me this day of 2009. Notaiy Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Helen A. Clark, Notary Public City Of Harrisburg, Dauphin County MY Commission Expires June 28, 2010 Member, Pennsylvania Association of Notaries CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, with first-class postage, prepaid as follows: John P. Encarnacion, Esquire White and Williams, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 (Counsel for Plaintiff) Lewis R. Sunkel 21 Farm House Lane Camp Hill, PA 17011 (Pro Se Defendant) GOLDBERG KATZMAN, P.C. CB : renner, Esquire Date: February -1-, 2009 L ? - '" r- ; ? r -r?: Y = t:. tt3 ? - ? ? . d. ' r ?' =? ?' ? <j, ? ? ? , s MASSACHUSETTS BAY INSURANCE COMPANY, PLAINTIFF V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3894 CIVIL ORDER OF COURT AND NOW, this 12th day of February, 2009, upon consideration of the D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC., DAUPHIN ELECTRIC, AND COMFORT TECH, INC. DEFENDANTS Motion to Enforce Subpoena of Defendant D. L. Heiges, Electric, said Motion is GRANTED and Lewis Sunkel is ORDERED to attend and testify at the offices of Goldberg Katzman, P.C. at 320 Market Street at Harrisburg, Dauphin County, Pennsylvania within 15 days of the date of this order as scheduled by counsel and to remain until excused; and to bring with him any documents in his possession regarding the work he performed at the Alpha Racquetball and Fitness Club facility. IT IS FURTHER ORDERED AND DIRECTED that Lewis Sunkel reimburse D. L. Heiges for all cost and fees incurred due to his failure to attend and testify as required by the subpoena issued by the Court on November 17, 2008 in the amount of $256.40. By the Court, 0O M. L. Ebert, Jr., 1 J. kJ?i`H J?1 SJ ? - tA1?!'?tJ 1L1- , } ???i 1 t y ? . /homas Brenner, Esquire Attorney for D. L. Heiges /,6ewis R. Sunkel, Pro Se Defendant An P. Encarnacion, Esquire Attorney for Plaintiff bas MASSACHUSETTS BAY INSURANCE COMPANY, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA : NO. 2005-03894 D.L. HEIGES ELECTRICAL SERVICES, INC., LEWIS R. SUNKEL, DAUPHIN ASSOCIATES, INC., DAUPHIN ELECTRIC, and : CIVIL ACTION - LAW COMFORT TECH, INC., Defendants PRAECIPE TO SETTLE and DISCONTINUE TO THE PROTHONOTARY: Please mark this action settled and discontinued. Date: 2-(-i o r WHITE AND WILLIAMS, LLP By: John Y. Encarnacion, Esquire 180 ne Liberty Place Phi delphia, PA 19103-7395 184592.1 FILEL' 2009 DEC 2'9 F i I 1 1- Li 6 GUM