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HomeMy WebLinkAbout02-3268STANLEY BRITT, Plaintiff OFFICEMAX and GRUGA USA, : d/b/a NOVIMEX FASHIONS LTD: a/k/a NOVIMEX : Defendants : : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY PA : CIVIL ACTION - LAW 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 of 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. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 STANLEY BRITT, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY PA OFFICEMAX and GRUGA USA, v. : NO: : : CIVIL ACTION - LAW d/b/a NOVIMEX FASHIONS LTD: a/k/a NOVlMEX .. Defendants : COMPLAINT AND NOW COMES the plaintiff, Stanley Britt, by and through his attorneys, TURO LAW OFFICES, and does respectfully represent the following: FACTS APPLICABLE TO ALL COUNTS 1. The Plaintiff, Stanley Britt, is an adult individual who currently resides at 6199 Haymarket Way, Mechanicsburg, in Cumberland County, Pennsylvania, 17055. 2. The Defendant, OfficeMax, is a corporation doing business in Pennsylvania. 3. The Defendant, OfficeMax operates a retail store located at Gateway Square, 97 Gateway Drive, Mechanicsburg, PA 17050. 4. The Defendant, OfficeMax, is in the business of selling office supplies, including desk chairs, to consumers. 5. The Defendant, Gruga USA, d/b/a Novimex Fashions LTD, a/k/a Novimex (hereinafter "Novimex"), is a corporation doing business in Pennsylvania, with corporate offices located at 18551 East Gale Ave., City of Industry, CA 91748. 6. The Defendant, Novimex, is in the business of manufacturing furniture, including office chairs. 7. The facts and circumstances hereinafter set forth took place on July 12, 2000, at the business offices of Family Health Council of Central Pennsylvania (FHC), 3461 Market Street, Camp Hill, PA 17011. 8. At the aforesaid time and place, Plaintiff, Stanley Britt, was an employee of FHC. 9. At the aforesaid time and place, Plaintiff, Stanley Britt, was working while seated at his desk. He rotated his executive-style chair (provided by his Employer, FHC) to face his credenza when the base of the chair suddenly broke off, causing Plaintiff to fall to the floor. 10. At all times, Plaintiff, Stanley Britt, was using the chair in a manner consistent with its intended purpose. 11. The aforesaid chair was purchased by FHC on or about 1997, from Defendant OfficeMax's retail store at Gateway Square in Mechanicsburg PA. 12. The aforesaid chair was manufactured by Defendant Novimex and bore the Model # 892-0626. 13. As a direct result of his fall from the chair that broke, Plaintiff Stanley Britt has suffered serious and permanent injuries, including the following: a) Severe strain and sprain of the muscles, tendons, ligaments and other soft tissues at or about the cervical spine; b) Severe strain and sprain of the muscles, tendons, ligaments and other soft tissues at or about the thoracic spine; c) Head pain; d) Post-traumatic cephalalgia; e) Multiple abrasions and contusions; f) Shock to the nerves and nervous system; and g) Mental and physical anguish. 14. As a direct and proximate result of the aforesaid injuries, Plaintiff Stanley Britt has undergone and in the future will undergo pain and suffering for which damages are claimed. 15. As a further result of the aforesaid injuries, Plaintiff, Stanley Britt, has incurred and may continue to incur expenses for medical treatment and rehabilitation for which damages are claimed. 16. As a further result of the aforesaid injuries, Plaintiff Stanley Britt suffered a loss in earnings for which damages are claimed. 17. As a further result of the aforesaid injuries, Plaintiff Stanley Britt has suffered a permanent diminution in his ability to enjoy life and life's pleasures for which damages are claimed. COUNT I Stanley Britt V. OfficeMax Warranty 18. Paragraphs 1 through 17 of Plaintiff's complaint are incorporated herein by reference and made a part hereof as if set forth in full. 19. Under the PA Uniform Commercial Code, 13 Pa.C.S.§ 1101-9507, Defendant, OfficeMax, warranted the chairs it sold to FHC were fit for the intended purpose of sitting and doing work at a desk. 20. Defendant OfficeMax breached this warranty by selling a defective chair. 21. As. a result of Defendant OfficeMax's breach, the Plaintiff, Stanley Britt fell when the defective chair broke, causing him bodily injuries. WHEREFORE, Plaintiff, Stanley Britt, demands judgment against Defendant, OfficeMax for compensatory damages in an amount in excess of the amount requiring compulsory arbitration. COUNT II Stanley Britt v. OfficeMax Products Liability 22. Paragraphs 1 through 21 of Plaintiff's complaint are incorporated herein by reference and made a part hereof as if set forth in full. 23. Defendant OfficeMax is a guarantor of the safety of the products it sells when the product is used as intended. Defendant OfficeMax is strictly liable for injuries caused by defects in the chair it 24. sold. 25. As a result of a defect in the office chair sold by Defendant OfficeMax, the Plaintiff, Stanley Britt, fell to the ground when the chair broke and sustained bodily injuries. WHEREFORE, Plaintiff Stanley Britt demands judgment against Defendant OfficeMax for compensatory damages in an amount in excess of the amount requiring compulsory arbitration. COUNT III Stanley Britt V. Novinlex Warranty 26. Paragraphs 1 through 25 of Plaintiff's Complaint are incorporated herein by reference and made a part hereof as if set forth in full. 27. Under the PA Uniform Commercial Code, 13 Pa.C.S.§ 1101-9507, Defendant, Novimex, warranted the chairs it manufactured were fit for the intended purpose of sitting and doing work at a desk. 28. Defendant Novimex breached this warranty by manufacturing a defective chair and allowing that defective chair to enter the stream of commerce. 29. As a result of Defendant Novimex's breach, the Plaintiff, Stanley Britt fell when the defective chair broke, causing him bodily injuries. WHEREFORE, Plaintiff, Stanley Britt, demands judgment against Defendant, Novimex for compensatory damages in an amount in excess of the amount requiring compulsory arbitration. COUNT IV Stanley Britt V. Novimex Products Liability 30. Paragraphs 1 through 29 of Plaintiff's Complaint are incorporated herein by reference and made a part hereof as if set forth in full. 31. Defendant Novimex is a guarantor of its products safety when the product is used as intended. 32. Defendant Novimex is strictly liable for injuries caused by defects in the chair it manufactured. 33. As a result of a defect in the office chair manufactured by Defendant Novimex, the Plaintiff, Stanley Britt, fell to the ground when the chair broke and sustained bodily injuries. WHEREFORE, Plaintiff Stanley Britt demands judgment against Defendant Novimex for compensatory damages in an amount in excess of the amount requiring compulsory arbitration. Respectfully Submitted, TURO LAW OFFICES Dat.~ By: Carol L. Cingranel ',b/, Esquire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on this date I served a true and correct copy of the foregoing Complaint upon Defendant Novimex by depositing same in the United States Mail, by Certified Mail, Return Receipt Requested, from Carlisle, Pennsylvania, addressed as follows: Gruga USA, d/b/a Novimex 18551 East Gale Ave City of Industry, CA 91748 TURO LAW OFFICES By: Carol L. Cingranelli, B'squire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff STANLEY BRITT, Plaintiff OFFICEMAX and GRUGA USA, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY PA : : NO: : : CIVIL ACTION - LAW d/b/a NOVlMEX FASHIONS LTD: a/k/a NOVIMEX : Defendants : TO THE SHERIFF OF CUMBERLAND COUNTY: Please serve the attached Complaint on the named Defendant at the following address: OfficeMax Gateway Square 97 Gateway Drive Mechanicsburg, PA 17050 Date Respectfully Submitted TURO LAW OFFICES Carol L. Cin~ranolli, fis~uire 28 South Pitt Street Cadisle, PA 17013 (717) 245-~88 Attorney for Plaintiff STANLEY BRITT, Plaintiff OFFICEMAX and GRUGA USA, : d/b/a NOVlMEX FASHIONS LTD: a/k/a NOVlMEX : Defendants : : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY PA : : NO: 02-3268 CIVIL ACTION - LAW AFFIDAVIT OF SERVICE I HEREBY CERTIFY THAT I served a true and correct copy of Complaint filed in the above captioned case upon Gruga USA d/b/a Novimex, by certified mail, return receipt requested on July 2, 2002 addressed to: Gruga USA dba Novimex 18551 E. Gale Ave. City of Industry, CA 91748 and did thereafter receive same as evidenced by the attached Post Office receipt card dated July 12, 2002. I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING AFFIDAVIT OF SERVICE ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF, I UNDERSTAND THAT FALSE STATEMENTS HEREIN MADE ARE SUBJECT TO THE PENALTIES OF 18 PA.C.S. SECTION 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. TURO LAW OFFICES Carol L. Ci~granelli, F_~ui~'e 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff Postage Certified Fee Return Receipt Fee (Endorsement Required) ostmark I Mao a~tl to ~ the Iollow- ~ 13 C~~or 2 ~r a~i~ ~wi~, ing se~s (for ~ e~ f~): ~e ~ems 3, 40, ~ ~,  ~ to you. 1. ~ ~dress~'s A~re~ Q~ ~s fo~ to ~e ff~ of ~ m~l~, ~ ~ ~ ff ~ ~s ~ ~ ~ · ~' ~. U R~ D~ive~  3. A~de ~dre~ to: ~ ~ ~ * ~=-'- ~'' '-~-' ~ ~?~ ~ ~b~.-k 7001 2510 0009 2827 8547 , ~ - J · I ...... ~ ' ~b ~iceType ~, ~ ~ -- A~ ~ R~lstered ~.Ei~ l I n a w' ~R~mR~ptforMem~nd,. qmD 5. R~ By: (Pdnt Name) 8. A~re~'s Addre~ ~ and f~ ~ ~d) F:XFiLESXDATAFILE\TravdOC.Cur\760-pr~l/eny Created: 0?115102 03:51:26 PM 'Revised: 07/15/02 04:09:53 PM 3090,760 STANLEY BRITT, Plaintiff OFFICEMAX and GRUGA USA, dgo/a NOVIMEX FASHIONS LTD a/k/a NOVIMEX, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3268 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED pRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTSON DEARDORFF WILLIAMS & OTTO on behalf of Defendant OfficeMax in the above matter. Defendant hereby demands a twelve juror jury trial in the above captioned action. MARTSON DEARDORFF WILLIAMS & OTTO ~.e~.~o .B;~}l~r' Jr" F~uire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant OfficeMax Dated: July 19, 2002 CERTIFICATE OF SERVICE I, Christina N. Yost, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 Gmga USA d/b/a Novimex Fashions LTD a/k/a Novimex 18551 East Gale Avenue Industry, CA 91748 MARTSON DEARDORFF WILLIAMS & OTTO By ~7~z~ '~-~ Christina N. Yost (_./ Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: July 19, 2002 102300055 LAW OFFICES OF RALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610 320-4663, Fax 610-320-4767 Attorney for Defendant, Gmga, USA, Novimex Fashions Ltd. d/b/a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Stanley Britt, Pl~ntiff Vo Officemax and Gruga, USA, dgo/a Novimex Fashions Ltd. a/Fda Novimex Defendants CIVIL DIVISION NO. 02-3268 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance in the above-entitled matter on behalf of the Defendant, Gmga, USA, d/b/a Novimex Fashions Ltd. a/Fda Novimex. Dated: July 19, 2002 JURY TRIAL DEMANDED PANEL OF TWELVE JURORS REQUESTED Edward J. Cermanski, Esquire Attorney for Defendant, Gmga, USA, d/b/a Novimex Fashions Ltd. a/Fda Novimex CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the ENTRY OF APPEARANCE upon all parties, their attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below: By first-class, United States mail, postage prepaid: Carol L. Cingranelli, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff, Stanley Britt Officemax Gateway Square 97 Gateway Drive Mechanicsburg, PA 17050 Dated: Edward J. Cermanski, Esquire Attorney for Defendant Gmga, USA, d/b/a Novimex Fashions Ltd. a/k/a Novimex SHERIFF'S RETURN - CASE NO: 2002-03268 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BRITT STANLEY VS OFFICEMAX ET AL REGULAR CPL. TIMOTHY REITZ Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon OFFICEMAX the DEFENDANT , at 1048:00 HOURS, at 97 GATEWAY DRIVE MECHANICSBURG, PA 17050 STEVE WITT, STORE MANAGER a true and attested copy of COMPLAINT on the llth day of ~uly , 2002 by handing to & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff,s Costs: Docketing 18.00 Service 8.28 Affidavit .00 Surcharge 10.00 .00 36.28 Sworn and Subscribed to before me this ,~.,~ day of ~z,~ ~3 ~ ~ A. D. &' /Protho~otar~ So Answers: R. Thomas Kline 07/12/2002 CAROL CINGRANELLI Deity She-rT. F:WILES~DATAFILE\Tr avdoc.cur\760_ans 1/~ny/tde Created: 07/29/02 01:37:41 PM Revised: 10/07/02 04:32:12 PM 3090.760 STANLEY BRITT, Plaintiff OFFICEMAX and GRUGA USA, d/b/a NOVIMEX FASHIONS LTD a/k/a NOVIMEX, Defendants TO: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3268 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT OFFICEMAX TO PLAINTIFF'S COMPLAINT STANLEY BRITT, Plaintiff, and his attorney, CAROL CINGRANELLI, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. 18. by reference. AND NOW, comes Defendant OfficeMax, by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby responds to Plaintiff's Complaint as follows: 1. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of these averments. 2-4. Admitted. 5. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the troth or falsity of these avemsents. 6. Admitted. 7-17. After reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of these averments. COUNT I Stanley Britt v. OfficeMax - Warranty. The averments of paragraphs 1 through 17 of this Answer are hereby incorporated 19-21. Denied pursuant to Pa. R.C.P. 1029(e). 22. by reference. 23. WHEREFORE, answering Defendant demands judgment in its favor and dismissal of Plaintiff's Complaint with Prejudice. COUNT II Stanley Britt v. Office Max - Products LiabiliO~ The averments of paragraphs 1 through 21 of this Answer are hereby incorporated Admitted. 24-25. Denied pursuant to Pa. R.C.P. 1029(e). WHEREFORE, answering Defendant demands judgment in its favor and dismissal of Plaintiff's Complaint with prejudice. COUNT III Stanley Britt v. Novimex - Warranty 26. The averments of paragraphs 1 through 25 of this Answer are hereby incorporated by reference. 27-29. The allegations of these paragraphs are directed to a party other than answering Defendant; therefore, no response is necessary. WHEREFORE, answering Defendant demands judgment in its favor and dismissal of Plaintiff's Complaint with prejudice. COUNT IV _Stanley Britt v. Novimex - Products LiabiliB, 30. The averments of paragraphs 1 through 29 of this Answer are hereby incorporated by reference. 31-33. The allegations of these paragraphs are directed to Defendant other than answering Defendant; therefore, no response is necessary. WHEREFORE, answering Defendant demands judgment in its favor and dismissal of Plaintiff's Complaint with prejudice. NEW MATTER PURSUANT TO Pa. R.C.P. 2252(d) 34. The averments of Plaintiff's Complaim, which averments have been specifically denied, are hereby incorporated for the limited purpose of this cross-claim. 35. If Plaintiff is entitled to recover from any party, which is expressly denied, then Defendants, Gruga USA d/b/a Novimex Fashions LTD a/k/a Novimex are alone liable to Plaintiff or liable over to Defendant OfficeMax by way of contribution and/or indemnity or arc jointly and/or severally liable to Defendant OfficeMax on account of their own negligence or other liability producing conduct as alleged in the pleadings. 36. If Defendant OfficeMax is found liable to Plaintiff, which liability is expressly denied, its liability is secondary and passive to liability of and Defendants, Gruga USA d/b/a Novimex Fashions LTD a/k/a Novimex, whose liability is primary and active. WHEREFORE, Defendant OfficeMax demands judgment against Defendants, Gruga USA d/b/a Novimex Fashions LTD a/k/a Novimex, for all sums that may be adjudged against Defendant OfficeMax in favor of Plaimiff; in the alternative, Defendant OfficeMax demands judgment against Defendants, Gruga USA dfo/a Novmicx Fashions LTD a/k/a Novimex, for contribution and/or indemnity for thc appropriate part of thc amount of damages and costs awarded to Plaintiff, if any. Date: October 8, 2002 MARTSON DEARDORFF WILLIAMS & OTTO Geo"ge B. Faller, Jr. I. D. Number 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant OfficeMax VERIFICATION I, Todd Allen, Divisional Vice President of Risk Management of OfficeMax, Inc., acknowledge I have the authority to execute this Verification on behalf of OfficeMax, Inc. and certify the foregoing Answer with New Matter is based upon info,~aation which has been gathered by my counsel in the preparation of the lawsuit. The language of this Answer with New Matter is that of counsel and not my own. I have read the document and to the extent the Answer with New Matter is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent the content of the Answer with New Matter is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Todd Allen WILLIAM J. KRUEGER, Attorney at Law Notary Public- State of Ohio My commission has no expiration date. Section 147.03 O,R,C. .(ECEI\/E,L SEP 2 6 2002 CERTIFICATE OF SERVICE I, Christina N. Yost, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Defendant OfficeMax's Answer With New Matter to Plaintiff's Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Carol L. Cingranelli, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 Edward Cermanski, Esquire LAW OFFICES OF RALPH F TOUCH 401 Penn Street Suite 100 Reading, PA 19601 MARTSON DEARDORFF WILLIAMS & OTTO Christina N. Yost 6/ Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: October 8, 2002 STANLEY BRITT, Plaintiff Vo OFFICEMAX and GRUGA USA, : d/b/a NOVlMEX FASHIONS LTD: a/k/a NOVlMEX : Defendants : : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY PA : : NO: 02-3268 CIVIL ACTION - LAW ANSWER TO REQUEST FOR ADMISSIONS OF DEFENDANT OFFICEMAX 1. Admitted. 2. Denied. Respectfully Submitted, TURO LAW OFFICES /J~n Turo, Esquire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff CERTIFICATE OF SERVICF I hereby certify that I served a true and correct copy of the Request for Admissions of Defendant OfficeMax upon George B. Failer, Jr., Esquire, and Edward J. Cermanski, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the ~ ~' day of ,_-,,),'~ ~ ,2003, from Carlisle, Pennsylvania, addressed as follows: George B. Failer, Jr., Esquire Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013 Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 401 Penn Street, Suite 100 Reading, PA 19601 TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff LAW OFFICES OF RALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610 320-4663, Fax 610-320-4767 Attomey for Defendant, Gruga, USA, Novimex Fashions Ltd. cb'b/a IN THE COURT OF COMMON PI,EAS OF CUMBERLAND COUNTY, PENNSYLVANIA Stanley Britt, Plaintiff Vo Officemax and Gruga USA, d/b/a Novimex Fashions Ltd. a/k/a Novimex Defendants NOTICE TO PLEAD CIVIL DIVISION NO. 02-3268 To: Plaintiff You are hereby notified to :file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against EdwardQ~d~f'~rmanski, Esquire Attomey~or Defendant, Gruga, USA, Novimex Fashions Ltd. d/b/a Novimex LA W OFFICES OF RALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610 320-4663, Fax 610-320-4767 Attorney for Defendant, Gruga USA, Novimex Fashions Ltd. d/b/a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Stanley Britt, Plaintiff Vo Officemax and Gruga USA, d/b/a Novimex Fashions Ltd. a/k/a Novimex Defendants CIVIL DIVISION NO. 02-3268 DEFENDANT GRUGA USA, d/b/a NOVIMEX FASHIONS LTD., a/k/a NOVIMEX'S ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NOW, comes the Defendant, Gruga USA, d/b/a Novimex Fashions Ltd., a/k/a Novimex, by and through their attorney, Edward J. Cermanski, Esquire and the Law Offices of Ralph F. Touch, and answers the Plaintiff's Complaint as follows: 1. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 2. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 3. Denied. To the extent the allegations of the corresponding paragraph Constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 4. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 5. Admitted. 6. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are denied. 7. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 8. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 9. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 10. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 11. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the troth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 12. Denied. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are denied. 13. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsi~ty of such allegation. Proof of same is hereby demanded at the time of trial. 14. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 15. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 16. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the exten~t the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 17. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. COUNT I 18. Answering Defendant hereby incorporates by reference prior paragraphs 1 through 17 above as though more fully set forth hereinafter. 19. Denied. The allegations contained in the corresponding paragraph pertain to a Defendant other than Answering Defendant. 20. Denied. The allegations contained in the corresponding paragraph pertain to a Defendant other than Answering Defendant. 21. Denied. The allegations contained in the corresponding: paragraph pertain to a Defendant other than Answering Defendant. WHEREFORE, Answering Defendant demands judgment be entered in their favor and against Plaintiff, and thus prays that Plaintiff's Complaint be dismissed with prejudice. COUNT II 22. Answering Defendant hereby incorporates by reference prior paragraphs 1 through 21 above as though more fully set forth hereinafter. 23. Denied. The allegations contained in the corresponding paragraph pertain to a Defendant other than Answering Defendant. 24. Denied. The allegations contained in the corresponding paragraph pertain to a Defendant other than Answering Defendant. 25. Denied. The allegations contained in the corresponding paragraph pertain to a Defendant other than Answering Defendant. WHEREFORE, Answering Defendant demands judgment be entered in their favor and against Plaintiff, and thus prays that Plaintiff's Complaint be dismissed with prejudice. COUNT III 26. Answering Defendant hereby incorporates by reference prior paragraphs 1 through 25 above as though more fully set forth hereinafter. 27. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 28. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 29. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. WHEREFORE, Answering Defendant demands judgment be entered in their 'favor and against Plaintiff, and thus prays that Plaintiff's Complaint be dismissed with prejudice. COUNT IV 30. Answering Defendant hereby incorporates by reference prior paragraphs 1 through 29 above as though more fully set forth hereinafter. 31. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same: are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 32. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsity of such allegation. Proof of same is hereby demanded at the time of trial. 33. Denied. To the extent the allegations of the corresponding paragraph constitute legal conclusions, the same are deemed to be denied without further response pursuant to the applicable Pennsylvania Rules of Civil Procedure. To the extent the allegations of the corresponding paragraph constitute factual averments, the same are deemed to be denied due to the fact that after a reasonable investigation, Answering Defendant is without sufficient information or knowledge to form a belief as to the truth or falsil:y of such allegation. Proof of same is hereby demanded at the time of trial. WHEREFORE, Answering Defendant demands judgment be entered in their favor and against Plaintiff, and thus prays that Plaintiff's Complaint be dismissed with prejudice. NEW MATTER 34. The accident in question was caused by Plaintiff's own negligence and carelessness. Plaintiff's cause of action is therefore barred or limited by the tenx~s and provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. Sec. 7102. 35. Plaintiff's Complaint fails to state a claim upon which relief can be granted. 36. Plaintiff's Complaint is barred by the applicable Statute of Limitations. 37. Plaintiff's cause of action is barred by operation of the doctrine of assumption of the risk. 38. Answering Defendants were not negligent. 39. Any acts or omissions of Answering Defendant alleged to constitute negligence were not substantial causes or factors of the subject incident and/or did not result in the injuries and/or losses alleged by Plaintiff. 40. The incident and/or damages described in Plaintiff's Cornplaint were caused, or contributed to, by the Plaintiff. 41. The negligent acts or omissions of other individuals and/or entities may have constituted intervening superseding causes of the damages and/or injuries alleged to have been sustained by Plaintiff. 42. The incident, injuries and/or damages alleged to have been sustained by the Plaintiff were not proximately caused by the Answering Defendants. 43. Plaintiff has failed to properly mitigate his damages. 44. In the event that it is established that the Plaintiff sustained any injuries or damages as alleged, said injuries and/or damages were caused by the acts or omissions of other persons or parties and Answering Defendant asserts that there is no liability' on their part. 45. Answering Defendant at all times acted reasonably, prudently, properly, conscientiously and with the fullest due care. 46. To the extent to which it might be applied to the within action, Pa. R.C.P. 238, as adopted by the Pennsylvania Supreme Court, on its face and as it is applied, is violative of the Civil Rights Act, United States Constitution and the Pennsylvania constitution and imposes a chilling factor on Answering Defendant's exercise of their constitutional rights. 47. If there is a judicial determination that Pa. R.C.P. 238 irt the within action is constitutional, then any liability for any interest imposed by said rules should be suspended during that period of time that Plaintiff failed to convey a reasonable settlement figure, delay in responding to interrogatories, delay in responding to requests for production of documents, delay in producing witnesses for depositions or delay in any other discovery request by Answering Defendant, and as a result of such delay, the Plaintiff should be estopped from claiming any interest under such rule. 48. If there is a judicial determination that Rule 238 is constitutional, then any liability for any interest under the rule should be suspended during the period of time that there is a delay occasioned by the failure of the court to deal with pre-trial motions or petitions or to otherwise promptly schedule trial for this action. 49. The accident alleged in Plaintiff's Complaint occurred as the sole and proximate result of an act of God or other circumstances not within the control of Answering Defendants. 50. Plaintiff's injuries, if any, were pre-existing and/or were not caused by the accident alleged in Plaintiff's Complaint. 51. The accident described in Plaintiff's Complaint may have been caused by the abuse, misuse or non-intended abnormal use of the product in question after it left the possession and control of the Answering Defendant. It is further averred that any such abuse, misuse or abnormal use of this product was unforeseeable by the Answering Defendant. 52. The accident described in Plaintiff's Complaint may haw,~ been caused by a substantial change in the product in question after it left the Defendant's possession and control. It is further averred that any such change was unforeseeable by the Answering Defendant. WHEREFORE, Answering Defendant demands judgment be entered in their favor and against Plaintiff, and thus prays that Plaintiff's Complaint be dismissed with prejudice. LAW OFFICES OF RALPH F. TOUCH By: i~ E .w~r,jl/J. Cerrtfanski, Esquire At.l~'fiey for Defendant, Gruga USA, d/b/a Novimex Fashions Ltd a/k/a Novimex 401 Penn Street, Suite 100 Reading, PA 19601 610-320-4780 Attorney. I.D. # 56278 VERIFICATION The undersigned, being duly sworn according to law, deposes and says that he is counsel for the party or parties indicated on the preceding page as being represented by said counsel, that he has examined the pleadings and the entire investigative file made on behalf of said party or parties, that he is taking this verification to assure compliance with the pertinent rules pertaining to timely filing of pleadings and other documents described by said rules; and that the facts set forth in the foregoing document are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 PA C.S.A. SECTION 4904 relating to unswom falsification to authorities. The Verification of the attomey is being attached hereto because the Verification of the Defendant(s) cannot be obtained in the time allowed for filing of the subject pleading with the Court. The executed Verification of the Defendant(s) will be filed as soon as it is obtained. Date: Edw~/~ermanski, Esquire CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the foregoing Defendant, Gmga USA, d/b/a Novimex Fashions Ltd. a/k/a Novimex's Answer with New Matter to Plaintiff's Complaint upon all parties, their attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below: By first-class mail, postage prepaid: Carol L. Cingranelli, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff, Stanley Britt Officemax Gateway Square 97 Gateway Drive Mechanicsburg, PA 17050 Dated: January 27, 2003 Nffvimex Fashions Ltd. aYk/a Novimex 102300055/Cermanski STANLEY BRITT, Plaintiff V. : : OFFICEMAX and GRUGA USA, : d/b/a NOVIMEX FASHIONS LTD: a/k/a NOVIMEX : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PA NO: 02-3268 CIVIL ACTION - LAW PLAINTIFF'S REPLY TO NEW MATTER 34. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at trial. 35. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer is required the allegations are specifically denied and proof of the same ~s demanded at trial. 36. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at trial. 37. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at trial. 38. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at trial. 39. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer is required the allegations are specifically denied and proof of the same is demanded at trial. 40. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at trial. 41. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same is demanded at trial. 42. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at trial. 43. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same is demanded at trial. 44. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer is required the allegations are specifically denied and proof of the same ~s demanded at trial. 45. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at trial. 46. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at tdal. 47. The allegations of this paragraph are legal conclusions to which no response ~s necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at trial. 48. The allegations of this paragraph are legal conclusions to which no response is necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at trial. 49. The allegations of this paragraph are legal conclusions to which no response is necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at trial. 50. The allegations of this paragraph are legal conclusions to which no response is necessary. To the extent that any answer ~s required the allegations are specifically denied and proof of the same ~s demanded at trial. By way of further answer the Plaintiffs injuries were not pre-existing and were caused solely by the negligence of the Defendant. 51. Denied. The accident at issue was caused solely by the negligence of the Defendant and any allegations that the product in question was abused, misused or subject to abnormal use is proof demanded at trial. 52. Denied. The accident at issue was caused solely by the negligence of the Defendant and any allegations that the product in question was changed substantially is denied and is and proof is demanded at trial. WHEREFORE, Plaintiff demands judgment be entered in his favor against the Defendant. Respectfully Submitted, TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff VERIFICATION I, Ron Turn, Esquire, am the attorney for Plaintiff Stanley Britt. I have prepared the Plaintiff's Reply to New Matter based on information provided to me, which I believe to be accurate and correct Date/:////~/z///~ ~ CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Plaintiff's Reply to New Matter upon George B. Failer, Jr., Esquire, and Edward J. Cermanski, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the day of ~.--~/~X,,,' ,2003, from Carlisle, Pennsylvania, addressed as follows: George B. Failer, Jr., Esquire Martson, Deardorff, Williams & Otto 10 East High Street Carlisle, PA 17013 Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 401 Penn Street, Suite 100 Reading, PA 19601 TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff LA W OFFICES OF RALPH F. TOUCH By.- Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610 320-4663, Fax 610-320-4767 Attorney for Defendant, Gruga, USA, Novimex Fashions Ltd. d/b/a Novimex IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Stanley Britt, Plaintiff Officemax and Gmga, USA, d/b/a Novimex Fashions Ltd. aJk/a Novimex Defendants CIVIL DIVISION NO. 02-3268 RESPONSE OF DEFENDANTS, GRUGA, USA, NOVIMEX FASHIONS LTD. A/K/A NOVIMEX TO REQUEST FOR ADMISSIONS OF DEFENDANT, OFFICEMAX 1. Denied. Responding Defendant did not manufacture the chair at issue. It is admitted, however, that Responding Defendant sold the chair at issue to Defendant, Officemax. 2. Denied. After reasonable inquiry, the information known or readily obtainable by Responding Defendant is insufficient to enable them to admit or deny the corresponding Request for Admissions. Respectfully submitted, LAW OFFICES OF RALPH F. TOUCH Edward' J. Cermanski, Esquire Attorney for Responding Defendants Gruga, USA, Novimex Fashions LTD. a/k/a Novimex CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the foregoing Response to Request for Admissions of Officemax upon all parties, their attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below: By first-class mail, postage prepaid: Carol L. Cingranelli, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff, Stanley Britt George B. Failer, Jr., Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 (Attorney for Officemax) Dated: February 19, 2003 EdW~J' Cermanski, Esquire Attorney for Defendant, Gmga, USA, d/b/a Novimex Fashions Ltd. a/k/a Novimex 102300055/Cermanski STANLEY BRITT, Plaintiff Vo OFFICEMAX and GRUGA USA, d/b/a NOVIMEX FASHIONS LTD: a/k/a NOVIMEX Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY PA : : NO: 02-3268 : : CIVIL ACTION- LAW PRAECIPE TO THE PROTHONOTARY: Please settle, withdraw and discontinue the above-captioned matter on behalf of the Plaintiff, Stanley Britt. Date Respectfully Submitted TU R~'[_~W OFFICES 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff