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Home My WebLink About02-3443 I N THE COURT OF COMMON PlEAS ~ COUNTY, PENNSYLVANIA CUMBERLAND No. O~ ~ .2'-1lf.2 Civil Action - OCO Law ( ) Equ i ty COl'l~~~ David A. Lamberton and Valerie B. Lamberton 262 Willow Mill Park Rd. Mechanicsburg, PA 17050-1764 versus HamiltOn Beach/Proctor-Silex, Inc. c/o CT Corporation System 1515 Market St., Suite 1210 Philadelphia, PA 19102 Plaintiff(s) & Addres$(es) Defendant(s) & Address(es) PRAEC IPE FOR WR f,. OF SUffolONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. xx Writ of Summons shall be issued and forwarded to ( )Attorney ~)Sheriff Pichard S. Friedman, Esquire Fnedman & Kin~, F. C. 600 N. Second t., 5th Floor Harr1SbUrgg FA 1/101 (717) 236- UUU Names/Address/ Telephon No. of Attorney /1 ~gnature of Attorney Supreme Court 10 No. 61919 Date: July 17, 2002 WR IT OF SlH40NS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMEN D AN ACTION AGAINST YOU. Date: .....JuJ7 .J:::!, .;)rY)~, Prothonotary ~ a()/1J7_Q'~:/J/Y~ eputy ( ) Check here if reverse is issu~d for additional information PROTHON. - 55 pP~ ttf~ r8 ~ ~ff! E -:r: ~ ....... 'v a ; ! ' ~ n ~ "'Oct' 92[1"'; 2-t;' ," C, VJ.,>.-:: ;$........: 'C" <'" .' :l-" <:0 )::"0 c: ? ;3 , o ''u ~ r- o ~'l'1 '-, " 'l:G .,rn ,~;('t 8 c:-r:"::rJ ':!(") ',"' rn (/\ "_.J VJ ~..~ :0 -< :'0,) '" :e,,, :::::t' 9 :;:, C> v. Hamilton BeachlProctor-Silex Inc, c/o CT Corporation System 1515 Market St. Suite 1210 Philadelphia, P A 19102 Defendant ......-....................-..................................... .' David A. Lamberton and Valerie Lamberton 262 Willow Mill Park Rd Mechanicsburg, P A 17050-1764 Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA Q"lu~l'--r~ : NO, 0:2 - .144:1 : CIVIL ACTION - LAW T P WITH REOUEST FOR PRODUCTION OF DOCUMENTS TO: All Parties and/or Counsel of Record Please take notice that on Friday, August 30, 2002, at 3:00 P.M., the Plaintiff will take the oral deposition of Hamilton BeachlProctor-Silex, Inc" pursuant to Pa, R.C,P, 4007.1, at the law offices of Friedman & King, P,C., 600 N, Second St., 5th Floor, Harrisburg, PA 17101, before a person authorized by law to administer oaths, The Plaintiff will conduct inquiry into the following matters: 1. The results from the non-destructive testing of the subject carafe, which testing and report was requested or prepared by Hamilton BeachIProctor-Silex, Inc. Please take further notice that Defendant is requested, pursuant to Pa. R.C.P, Nos, 4009.1 et seq. and 4007. I (d) to produce at the deposition, and to permit the Plaintiff to inspect and copy all documents, and the following tangible things in the possession, custody or control of Defendant, which relate to the above-listed matters of inquiry: 1. All reports, findings, and results of testing performed, etc. in your possession, or in the possession of the person or entity that may have been hired to prepare such documents, as a result of having examined the subject carafe. The following definitions shall apply to this Notice of Deposition: 1, "Defendant" refers to Defendant, Hamilton BeachlProctor-Silex, Inc" their parents, subsidiaries. affiliates. predecessors, SUCCessors and all officers, directors, representatives, agents, employees, surrogates, partners, attorneys and all persons acting on their behalf. 2. "Documents" refers to all written, printed, recorded or graphic materials and matters of any kind and description, in both draft and final forms (including all attachments or addenda annexed thereto), whether inscribed by hand or by mechanical, electronic, microfilm, video and audio tape, photographic, computerized or other means, as well as phonic or visual recordings and reproductions. The oral examination will continue from day to day until completed. You are invited to attend and participate in this examination, Respectfully submitted, FRIEDMAN KING, P.C, Date: -; /11/02- Ric d S, Friedman, Esquire N, Second St. enthouse Suite P. 0, Box 984 Harrisburg, PA 17108 (717) 236-8000 Attorney (or Plaintiff RPB:pleadings\Iamberton.dep DAVID A. LAMBERTON and VALERIE LAMBERTON, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 02-3443 CIVIL TERM HAMILTON BEACH/PROCTOR- SILEX, INC., CIVIL ACTION -LAW Defendant DEFENDANT HAMIL TON BEACH/PROCTOR-SILEX. INC. 'S MOTION FOR A PROTECTIVE ORDER AND NOW, this 27th day of August, 2002, comes the above-named Defendant, Hamilton Beach/Proctor-Silex, Inc., by and through its counsel, Elliott Reihner Siedzikowski Egan & Balaban, and files its Motion for the issuance of a Protective Order, and in doing so avers as follows: 1. This action was commenced with the filing of a Writ of Summons, dated July 22, 2002. 2. Plaintiffs have initiated pre-complaint discovery through the issuance and service upon Defendant of a Notice of Deposition with Request for Production of Documents, dated July 10, 2002 (the "Deposition Notice"), which seeks to depose Defendant on Friday, August 30, 2002. A copy of the Deposition Notice is attached hereto, made a part hereof and marked as Exhibit "A". 3. The Deposition Notice indicates that Plaintiff will conduct inquiry into matters pertaining to "[t]he results from the non-destructive testing of the subject carafe, which testing and report was requested or prepared by Hamilton BeachlProctor-Silex, Inc." See, Exhibit "A". 4. Rule 4012(a) of the Pennsylvania Rules of Civil Procedure permits a party to seek an order from the court that will protect the party "from unreasonable annoyance, embarrassment, oppression, burden or expense." Pa, R.Civ,P, Rule 4012(a). 5. Rule 40 I 2( a)( 1 ) of the Pennsylvania Rules of Civil Procedure further permits a party to seek an order from the court that will protect the party in cases were "the discovery or deposition shall be prohibited." Pa. R.Civ.P. Rule 4012(a)(1). 6. Rule 4007.2(b) of the Pennsylvania Rules of Civil Procedure requires leave of court if a plaintiffs notice schedules the taking of a deposition prior to the expiration of thirty days after service of original process. Pa. R.Civ.P. Rule 4007.2(b). 7. Defendant was not served with the Writ of Summons until August 9, 2002, which is only twenty-one (21) days prior to the date on which Plaintiffs have demanded to depose Defendant (August 30, 2002). Defendant's record of service from its registered agent for service of process is attached hereto, made a part hereof and marked as Exhibit "B". 2 8. Plaintiffs' Deposition Notice violates Pa. R.Civ.P. Rule 4007.2(b). 9. Rule 4007 .1 (c) of the Pennsylvania Rules of Civil Procedure requires a Plaintiff, who desires to take a pre-complaint deposition, to include in the Deposition Notice "a brief statement of the nature of the cause of action and of the matters to be inquired into." Pa. R.Civ.P. Rule 4007.1(c). 10. Plaintiffs' Deposition Notice does not contain a "brief statement of the nature of the cause of action" and is in violation ofPa. R.Civ.P. Rule 4007. 1 (c). 11. While pre-complaint discovery is permissible, Plaintiffs, as the party seeking such discovery, bear the burden of showing that without the discovery a complaint could not be drafted. See, Pustilnik v. SEPTA, 45 Pa. D. & C.2d 799 (1968); see also, Anderson v. PennDOT, 47 Pa. D. & C.3d 429 (Cumberland, 1987) (J. Bayley). 12. Plaintiffs' Deposition Notice makes no showing whatsoever that they will be unable to prepare their complaint without Defendant's deposition, nor have Plaintiffs' filed any petition with the Court setting forth such an averment. 13. It is believed and therefore averred that Plaintiffs' Deposition Notice seeks to discover facts known or opinions held by an expert who has been retained or specifically employed by Defendant in anticipation of litigation or preparation for 3 trial and who is not expected to be called as a witness at trial, which information is not discoverable under Pa. R.Civ.P. 4003.5(a)(3). 14. Plaintiffs may through interrogatories seek the identity of the person(s) whom Defendant expects to call as an expert witness at trial. Pa. R.Civ.P. Rule 4003.5( a )(1). 15. Notwithstanding that Plaintiffs' have not sought to identify through interrogatories or to depose Defendant's expert witnesses, Plaintiffs' Deposition Notice seeks expert information; i.e., "results from the non-destructive testing of the subject carafe,...", and Defendant's expert report was provided to Plaintiffs by certified letter, dated May 3,2002. A true and correct copy of said May 3, 2002 letter is attached hereto, made a part hereof and marked as Exhibit "C". 16. As set forth in paragraph 15, hereof, Plaintiffs are already in possession of the documents sought by their Deposition Notice (see, Exhibit "C"); and additional discovery on this subject matter is, therefore, duplicitous and not necessary for Plaintiffs to draft a complaint, and will serve only to cause unreasonable and unnecessary expense to Defendant. 4 WHEREFORE. Defendant Hamilton BeachlProctor-Silex, Inc. respectfully prays this Honorable Court for an order protecting Defendant from repetitive and/or impermissible discovery, striking Plaintiffs' July 10, 2002 Deposition Notice, and directing Plaintiffs to forthwith file a Complaint in support of their Writ of Summons. Respectfully submitted, ELLIOTT REIHNER SIEDZIKOWSKI EGAN & BALABAN ~.. ichael V rown, Esquire Pa. J.D. #79984 Nick A. Rodriguez-Cayro, Esquire Pa. J.D. #86046 Governors' Row 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 (717) 234-3282 (717) 233-4264 (facsimile) mvb@erse.com nar@erse.com ......... ~ Date: August 27, 2002 Attorneys for Defendant G:\ERSE&BICLIENTSI I 0254-007lmot-protectiveord, wpd 5 DAVID A, LAMBERTON and VALERIE LAMBERTON, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 02-3443 CIVIL TERM HANULTONBEAC~ROCTOR_ SILEX,INC., CIVIL ACTION - LAW Defendant CERTIFICATE OF NON-CONCURENCE AND NOW, this 27th day of August, 2002, undersigned counsel hereby states that he has conferred with counsel for the Plaintiffs in the above-captioned matter and that same does not concur in Defendant's Motion for a Protective Order. Respectfully submitted, ELLIOTT REIHNER SIEDZIKOWSKI EGAN & BALABAN ~ ichael V rown, Esquire Pa. LD. #79984 Nick A. Rodriguez-Cayro, Esquire Pa. LD. #86046 Governors' Row 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 (717) 234-3282 (717) 233-4264 (facsimile) mvbup.erse.com narup.erse.com Date: August 27,2002 Attorneys for Defendant G:\ERSE&BICLIENTSl10254-Q07lcertnoncur,wpd Exhibit A AUG 26 2002 15:20 FR HB P5 LAW DEPT 804 527 7218 TO 917172334264 P,03 David A. Lamberton and Valerie Lamberton 262 Willow Mill Park Rd Mechanicsburg, PA 17050-1764 Plaintiff ; IN THE COURT OF COMM:ON PLEAS : CUMBERLAND COUNTY, PENNSYL V ANlA : NO. v. Hamilton BeachIPl'octor-Silex Ine c/o CT Corporation System : CIVIL ACTION - LAW 1515 MarketSt Suite 1210 Philadelphia, PA 19\02 Defendant ....-*........*.......-........--..........-..........*.......... ~f,: O{))EPOSITION TO PARTY- WITH REOUEST FOR PRODUCTION OF DOCUMENTS TO: All Parties and/or Counsel of Record Please take notice that on Friday. August 30, 1002, at 3:00 P.M.. the Plaintiff will take the oral deposition of Hamilton BeachIProctor-Silex, Inc., pursuant to Pa. R.C.P. 4007.1, at the law offices of Friedman & King, P.C., 600 N. Second St, Sth Floor, Harrisburg, P A 1710 I, before a person authorized by law to administer oaths. The Plaintiff will conduct inquiry into the following matters; 1, The results from the non-destructive testing ofthe subject carafe, which testing and report was requested or prepared by Hamilton BeachlProctor-Silex, Inc. Please take further notice that Defendant is requested, pursuant to Pa. R.C.P. Nos. 4009.1 et seq. and 4007. \ (d) to produce at the deposition, and to permit the Plaintiff to inspect and copy all docwnents, and the following tangible things in the possession, custody or control of Defendant, which relate to the above-listed matters of inquiry; 08/26 '02 15:07 AUG 26 2002 15:20 FR HE PS LAW DEPT 804 527 7218 TO 917172334264 P.04 " 1. All reports. findings, lLnd results oftosting perfonned, 010, in your possession, or in the possession of the person or entity that may have been hired to prepare such documents, as a result ofbaving examined the subject carafe. The following definitions sball apply to this Notice of Deposition: 1. "Defendant" refers to Defendant, Hamilton Beach/Prootor-Silex, Inc., their parents, subsidiaries, affiliates, predecessors, successors and all officers, directors, representatives, agents, employees, surrogates, partners, attorneys and all persons acting on their behalf. 1. "Docwnents" refers to all written, printed. recorded or graphic materials and matters of any kind and description, in both draft and final forms (including all attachments or addenda annexed thereto), whether inscribed by hand or by mechanical, electronic, microfilm, video and audio tape, photographic, computerized or other means, as well as phonic or visual recordings and reproductions. The oral examination will continue from day to day until completed. You are invited to attend and participate in this ex.amination. Respectfully submitted, FRIEDMAN KING, p.e. Date: //;,/02- Ric S. Friedman. Esquire 6 N. Second St. enthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 Attorney for Plaintiff RPB :pleadings\lamberton.dep 08/26 '02 15:07 Exhibit B AUG 26 2002 15:19 FR HB PS LAW DEPT 804 527 7218 TO 917172334264 P.01 ~ If J-t;tf ~0'7 ~ CT System swvtc:e of Procell Trllllmlftlll FOnn ..hila......, penl'IIYlVanla GMllIfaDOZ VI, .......11IIIpr.. (2nd DIy) ,;rU l.'ld' I;, a.;,.." TO: Kathleen L Diller General counsel Hamilton BeachIPl'OCtor-Sllex, Inc. 4421 WaterfrOnt Dr. (ilen Alen, VA 250fi00Q000 Phone: l804I527-759B lIllC: FAX: 18041527-7218 RECEIVED AUG 1 2 2002 II: PROCESS .RVlD IN PINNMVANIA HAMILTON BEACH/PROCTOR.SILEX, INC LAW DEPARTMENT ~ Hamilton BeaClVproctoMllex, Inc. DomestIc Statal De --...~. ~__.vTIIIITAT\Il'HYA_.1III1IICIVI_Al_ 1. TITUI D' _II: David A Lamberton et al V5 Hamilton Beatl1lproctor-s1lex Inc i2. -11.1J1SI__ Pratdpe FOr Writ Of summons, Writ Of summons, onlY document receIVed NOtice Of DepOsition II. CDIIIIT: Common PleaS Court. CUlllberland Co Pi tase Number 0250445 .. __TUU III' ACTION; You are notlflecl that plllntIffW have commenced an action against you. Deposition on Aug 50 2002 at 5:00 P M .. 011 .110. _.AI _ CT corporation system, Philadelphia, Pennsylvania .. DATI AllllIIO.. 011__ BV PrOcess server on 08IQ9I2(J02 at 14:00 7. .__11II__ _ Refer To Nature of Action. ..Ano_ 7172568000 RIchard S Frleclman 600 n Second St Harrisburg, PA 17101 .. -- Accol'Cllng to tne recol'ClS Of our office our services have been discontinued In this state. per The secretary of State of PeM5V1V1nla C T Is stUll1stea 1M tne Registered Office Address. __ CT Corporation System _ sandra E. SOlomon ADD_ 1515 MarIl:et street suite 1210 PhiladelPhia, PA 19102 SOP WS 0004698294 InformlClon Con tllned on this trInImltal form II reclll'cMd for C T corpOl'lt/on SVItIm's rel:lI/'d k-'ne IIUI'_ only Md to permit QUICk refcrlll'lCO for #10 rlGlllhlnt. Thb IntGrl!lltlonllCl. not CoIIItIlIltlIII_ opinIon. tD tno INlturl oIlCC1on, tnllll1lllllllt gf dIm._, the anew.- elite, Dl' lilY InfDl'I'IlftIon the CI/\ be C1btllned frClll\ till dClalmena themrll-. The reclp"'t II r.st;IonsIIle for Interllr<<lne till docurnentllnd for tlklne thlllpproprillte IctIon. 08/26 '02 15:07 Exhibit C _.........."...".._.~.-..,,",.-_.... o I'T1 1.1'I o ru o o o U,S. Postal Service CERTIFIED MAil RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) I , , I . Postage $ Certified Fee , Postmark Return Receipt Fee Here (Endorsement Aequired) Restricted Dellvety Fee (Endorsement Required) -0.___ . p___ '" Total p,. .-'l .-'l ru ~ o .-'l 1.1'I ru .-'l o o l'- Richard S. Friedman, Esq. 82152.01 600 North Second Street, 5th Floor P.O. Box 984 Harrisburg, PAl 71 08 , t' . Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. . 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 mail piece, or on the front if space permits. 1, Article Addressed to: -- '. cIaIivery addreSs diff""",t from item 1? 0 Yes II YES. enter delivery address below: 0 No Richard S. Friedman, Esq. 82152.lH 600 North Second Street, 5th Floor P.O. Box 984 Harrisburg, P A 17108 3, Service Type '6tenlfied Mali 0 Express Mail o Ragistared 0 Return Receipt for Merchandlsa o insured Mail 0 C.O.D. 4, Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Transferfromservicalabel) 70012510000205304211 PS Form 3811, August 2001 Domestic Raturn Recelpl 102595.()2.M-0835 LAW OFFICES OF BURT BARR & ASSOCIATES, L.L.P. 304 S. RECORD DALLAS. TEXAS 75202 (214) 742-8001 FAX (214) 741-6744 COMMUNICATION PURSUANT TO RULE 408 OF THE TEXAS AND FEDERAL RULES OF EVIDENCE May 3, 2002 Via Certified Mail. RRR 70012510 0002 0530 4211 Richard S, Friedman, Esq, Friedman & King, P.C. 600 North Second Street 5th Floor P.O. Box 984 Harrisburg, P A 17108 RE: Claim involving: Crisa Industrial LLC and VitroCrisa, S de RL Claimant's Name: Valerie Lamberton Product Involved: coffee maker carafe Model: A607 A, G3500Z Customer: Hamilton Beach/Proctor-Silex, Inc, DOL: January 25,2001 Our Client:: VitroCrisa, S. de R.L. Our Client No.: 82152.01 Dear Mr. Friedman: I represent VirtroCrisa, S de RL, the company that manufactured and distributed the glass coffee carafe involved in your client's claim, It is my understanding that your client is claiming she was injured when this coffee carafe broke by the lip, In connection with your claim, my client had the remains of the coffee carafe examined by John B. Kepple of the American Glass Research. For this reason, I enclose a copy of a report dated April 29, 2002, that Mr. Kepple has prepared in connection with the claim of Valerie Lamberton. After my client has had an opportunity to review this report, I will be able to advise you of its position on resolving your client's claim, Richard S. Friedman, Esq, Friedman & King, P.C. May 3, 2002 Page 2 This correspondence is sent to you pursuant to Rule 408 of the Texas and Federal Rules of Evidence as well as any other statute, code or rule concerning settlement discussions. Should you have any questions, please do not hesitate to contact me. Thank you for all your help and assistance. LHP:set encl. cc: Ms, Elaine M. Davis (w/encl.) Shawn Urelius, Esq. (w/encl.) Sincerely, ~roruvut 9t. ~~ I I Leonard H. Plog II - , American Glass Research A UN.I Of AC:A INTIRNAnONAI. INC. Apri129, 2002 Mr. Leo.ard H. Plol D Burt Barr A Auociates. LLP 304 South Record Dallas TX 75202 RE: The Claim of Valerie Lamberto. apiasl H."~ BeacblProdor-Si1e~ I.e. Your CUeat: VitroCrIaa, S de RL de C. V. Your CUeDI Number: 82152.01 Dear Mr. Plog: I m:civcd the fragments of glass teputcd to be involved in this matter from you 00 April 10. 2002, The &lass was p.xam~ on Aprill8. 2002. and this letter constitutes my report regarding this cxlD'l1i"4rion. The glass will be returned to you under separare COVCZ'. The analyses, conclusions. and opinions set folth in this IqlOrt are supportable by the scientific tests and experimental observations conducted by American Glass Research. DESCRIP110N There was one large fragJ'Nlllt of glass, consisting of the bottom and most of the body of a coffee pol. The rim and the neck (the aiea covered by the mecal band by which the hAndle is attached) were broken into three medium size pieces of glass and 74 small pieces of glass. When I received the pot, the pac".ge also co1rtained a 11UIDber- of ~ps of glass. A partial m:onstruction of the pot was made by taping the rhIee medium pieces and six of the small pieces in place against the body segment. The recoastructed portion' was estimated to be approYitnllltely 90% of the glass origiually in the pot. The rccoDs&ructed pot was disassembled during the course of the eYamiftAtion and it is being retumed to you in the disassembled state. In retumiDg !be pot to you, the chips of glass were placed in a plastic bag and the small and medium pieces of glass were wrapped in tissue paper. P.O. Box 411 . 603 Eltons CITy Pooa . Butler. PA lilOJl . Pnone: 1241482,:1163 . FOll: 12./482..0116 . E-MOI: og'8SeOrcn@ogllnn.com .' Mr, Leonard Plog Page 2 April 29. 2002 mENTMCATlON The pot was round and had a profile as shown in the accompanying drawing. There were markings on the side of the pot to show the c;up measurements. The pot held 12 cups to the bonom of the metal~. There was also the following: MEXICO 2060 0700 The numbers wac blurred and difficult to reed. The handle, metal baud, lid.. and coffee maker were aU included in the pKhge that I received. But no examination was made of any of these items. CONDmON OF THE GLASS AND POT Examination of the glass' with optical magnification up to 30X under strong lighting revealed that the bottom bearing surface of the pot bad a band of wear c:onsislent with the pot having been substantially used prior to the breakage. Eyll1ftiftAt'inn of the inside surface re~ealecl the preseDIO:c of cleavagc scratches particularly on the bottom and heel, but occurring throughout the body, including several found near tbe oriem oftbc fracture. QUALITY OF THE GLASS AND POT EYAmj~tion of the glass in polarized light Jevcalecl that the quality of the glass melt was good and the Aftne-ling of the teapot was satisfactory. Tbc: exlW'ift~tion with m"gJlific;ation under strong lighting revealed no bnp:deWons or irregularities in the glass or in the fabrication of the teapot. ApplopOatc mmen~onal mcasurcmcnts were measured and fouad to be nounal and adequate for glass items of this type, Thic"-'teS are shown in the acc:ompanying drawing in mils (tbousaMtbll of an inch). The glass and pot were of souad commercial quality as manufactured. DESCRIPTION OF THE FRACTURE The fracture pattern is shown in the accompanying drawing, The fracture originated on the iDside surface in the neck area. The actual origin was 1l'imng bet'8"..... of cbippiDg that occurred at the origin site. The origin traveled laterally around the neck separating the body of the pot from the neclc and lip area. The neck and lip area wU fuJ1ber fragmented. but it is uncertain bow much of this took plllCC at the time of the accident. Some of it may have occuned at a IaIcr time. " Mr, Leonard Plog Page 3 April 29, 2002 As noted above., cleavage scratehes were observed close to rhc site of the origin. CAUSE OF THE J'RACI'URE Based on my e'lCwo,lUIrion, I have come to the followiDa conclusioos. 1. The fracture WIS caused by the oormal force exerted by the metal band on the glass when the pot is filled and being transported by the bandle, 2. The fracture probably orig;"at~ at a cleavage scratch on the inside surface, such as is caused by clMlning with abrasive mat.eriaJs. 3, The cleavage scratch materially weakened the glass, allowing a nonnal force from the metal baud to cause brealcage. 4, There were no w~nesses or defects in the glass or pot, as supplied to Hamilton Beacb/Proctor-Silcx. which in any way contributed to the cause of this accident. Sincerely. AMERICAN GLASS RESEAR.CH r~~ Job.. B. Kepple SeDior Scieadlt JBKIlmp 40 44 38 LAMBERTON v VITROCRISA J-L~~1 - f/ CERTIFICATE OF SERVICE AND NOW, this 27th day of August 2002, I, Michael V. Brown, hereby certify that I served a true and correct copy of the foregoing DEFENDANT HAMIL TON BEACHlPROCTOR- SILEX. INC.'S MOTION FOR A PROTECTIVE ORDER by way of First Class U.S. Mail, postage prepaid, and facsimile on the parties designated below: Richard S. Friedman, Esquire 600 N. Second Street 5th Floor Harrisburg, PA 17101 717-236-8000 717-236-8080 (facsimile) ~ ichael . Brown --- G:\ERSE&BICLIENTS\ 1 0254.007\mot-protectiveord, wpd 6 (") C :?'"' -c; l1'i rTl ;.~ i ~S'; ~l.-j :t:;(J ""'0 )>C z: ::c! o f' ~I :0- (';1 :.;".., r-) CD ".p n .J -0 ::~ w ~::-2\ ~) "T! i~~~ .::; l~ ..J -< (...~ DAVID A. LAMBERTON and VALERIE LAMBERTON, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. No. 02-3443 CIVIL TERM HAMIL TON BEACHlPROCTOR- SILEX, INC., CIVIL ACTION - LAW Defendant ENTRY OF APPEARANCE Kindly enter our appearance in the above-captioned matter on behalf of the Defendant, Hamilton Beach/Proctor-Silex, Inc. Respectfully submitted, ELLIOTT REIHNER SIEDZIKOSKI EGAN & BALABAN ichael . Brown, Esquire Pa. I. . #79984 ~~~~&qmre Pa. I.D. #86046 Governors' Row 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 (717) 234-3282 (717) 233-4264 (facsimile) mvb@erse.com nar@erse.com Date: August 26, 2002 Attorneys for Defendant G:\ERSE&B\CLIENTS\\ 0254-007\entryappear, wpd CERTIFICATE OF SERVICE AND NOW, this 26th day of August 2002, I, Michael V. Brown, hereby certify that I served a true and correct copy of the foregoing Entry of Appearance by way of First Class u.s. Mail, postage prepaid, and facsimile on the parties designated below: Richard S. Friedman, Esquire 600 N. Second Street 5th Floor Harrisburg, P A 17101 717-236-8000 717-236-8080 (facsimile) ~k~ ichael . Brown G:\ERSE&BICLIENTSII 0254-007\entryappear, wpd () 0 0 C N 'T1 s: :l:oo =? -00::1 - DJP" Ci") '...,., ~ ;11 ;= ZF'c N -0 ITl (f) ).' '-.J ~'~':O -<./ '.:)6 r:r-I )-ri --,-, '''0 ~c - ,>'.- :u .J.......... "-;;-.. ~..,I 5>0 ~ ;:"~ITl C '-' ..".. '-'j ~ :::> :iJ r0 -< DAVID A. LAMBERTON and VALERIE LAMBERTON, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v, : No. 02-3443 CIVIL TERM HAMIL TON BEACHlPROCTOR- SILEX, INC" CIVIL ACTION - LAW Defendant PRAECIPE AND RULE TO FILE A COMPLAINT TO: Richard J. Pierce, Prothonotary Kindly issue a rule on the above-named Plaintiffs to file a Complaint in the above case within twenty (20) days after service of the rule or suffer a judgment of non pros. Dated: August 27, 2002 ~-~~ ~ . hael V. rown, Esquire ''------------_ Pa. 1.D. #79984 Nick A. Rodriguez-Cayro, Esquire Pa, I.D. #86046 ELLIOTT REIHNER SIEDZIKOWSKI EGAN & BALABAN Governors' Row 27 N. Front Street P,O. Box 1284 Harrisburg, P A 17108-1284 (717) 234-3282 (717) 233-4264 (facsimile) mvb(a)erse.com nar@erse,com Attorneys for Defendant AND NOW, this ~ay of {)t...U:t' ,.o:t- ,2002, a Rule is issued as above. ~lK'~r R:~L.J J. P;~.w, Prothonotary I4'.; L:J, ~ o. P. 71~--9/}~ (Deputy) G:\ERSE&B\CLIENTS\ I 0254-007\praecipecomplaint. wpd CERTIFICATE OF SERVICE AND NOW, this 27th day of August 2002, I, Michael V. Brown, hereby certify that I served a true and correct copy of the foregoing Praecipe and Rule to File a Complaint by way of First Class U.S. Mail, postage prepaid, and facsimile on the parties designated below: Richard S. Friedman, Esquire 600 N. Second Street 5th Floor Harrisburg, PA 17101 717-236-8000 717-236-8080 (facsimile) ~~:F- ichael V ro ------------, G:\ERSE&B\CLlENTS\10254-007\praecipecomplaint.wpd (') C ?' -ow rncp 2.....'" Ze,: (/) " ;;/ -'~. c:;.C; :e('.-, Z" -,0 ;PC ~ o N 'P" c:: co> N 0) -0 :J' c..> C1' o .-n ..~ :.:C-r. I,lr~ 4'("-" ~,.(? ;j~'t?, .\:;-n i~f, 9 :ss '< DAVID A. LAMBERTON: and VALERIE LAMBERTON, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW HAMIL TON BEACH/ PROCTOR-SILEX, INC., Defendant NO. 02-3443 CIVIL TERM ORDER OF COURT AND NOW, this 3rd day of September, 2002, upon consideration of Defendant Hamilton Beach/Proctor-Silex, Inc. 's Motion for a Protective order relating to a deposition notice dated July 10, 2002, scheduling a deposition for August 30, 2002, and Defendant's motion having been filed at 3:15 p.m. on August 28, 2002, and having reached the chambers of the undersigned on the afternoon of August 30, 2002, leaving the court insufficient time to elicit a response from opposing counsel and properly consider the merits ofthe issue, the motion is denied. BY THE COURT, Richard S. Friedman, Esq. 600 N. Second Street Fifth Floor Harrisburg, P A 1710 1 Attorney for Plaintiffs ~ - ~ 9-0'f~().;L, 9-. .., ,,,^ \1\N'l;ffw.S\'.\N3d }.J.NnoC\ n\\;tf1,\:^?9\f'\fi~ S'l:\ ~\d r,- d3S 20 \l '',1\ (',\,:'~i"'- ' i' : ,:,: :\() At'j i_V' \\...11 ,l../-l.; .,.j .e:" ... 3S\j:\Cr-crrnJ .. .. Michael V. Brown, Esq. Nick A. Rodriguez-Cayro, Esq. Governors' Row 27 N. Front Street P.O. Box 1284 Harrisburg, P A 17108-1284 Attorneys for Defendant :rc ~ ~ q_O("o~ ~ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-03443 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LAMBERTON DAVID A ET AL VS HAMILTON BEACH/PROCTOR SILEX 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: HAMILTON BEACH/PROCTOR-SILEX INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of PHILADELPHIA County, Pennsylvania, to serve the within WRIT OF SUMMONS On September 24th , 2002 , this office was in receipt of the attached return from PHILADELPHIA Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Phila Co 216.00 .00 253.00 09/24/2002 FRIEDMAN & KING S~~~~~ R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me .w,.. this '7 ~ .21>V...l.. day of (!)d;-,../~. , A.D. Cf,- () rv"jp,-, ~ prothonotar . ' ., ~~~LJ9 ~ In The Court of Common Pleas of cu~rIL~<Ki"nty, Pennsylvania David A. Lamberton et al VS. SERVE: ::~iH~ -~7:!ff~' "'0. No. 02 15(, M~ ~t~o 3443 civil ~ ""J Now, July 25, 2002 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of PhiladelphiA County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. r~~~~ Sheriff of Cumherland County, PA Affidavit of Service Now, X-'7 , 20 6 L, at L o'clock L M. served the within upon ,// /1'h / L 10 AI is ilIC(-r / I r 0 (, f7J --< ..fi If '1 at ISiS /1/)/1.(((:1-' Sf by handing to N fiNe lj ./J,/A ti'hrp/l r~ ( 7 a copy of the original and made known to the contents thereof. So answers, ~ lq.s '1eY}fJe4 f ~o(es) Sv-v'lf County, PA Sworn and subscribed before me this IS+hday of -B 3 ,,~, 20 02. COSTS SERVICE MILEAGE AFFIDAVIT $ $ DAVID A. LAMBERTON and VALERIE B. LAMBERTON, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 02-3443 civil Term HAMILTON BEACH/PROCTOR- SILEX, INC. c/o CT CORPORATION SYSTEM, Defendant CIVIL ACTION - LAW NOTICE TO DEFENDANT NAMED HEREIN: 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. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 Le han demandado a usted enla corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partie de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus de fens as 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se detiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 DateO~)~ 17108 DAVID A. LAMBERTON and VALERIE B. LAMBERTON, Plaintiffs IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 02-3443 civil Term HAMILTON BEACH/PROCTOR- SILEX, INC. c/o CT CORPORATION SYSTEM, Defendant : CIVIL ACTION - LAW COMPLAINT Now comes the Plaintiffs, Valerie B. Lamberton and David A. Lamberton, by and through their attorneys, Friedman and King, P.C., and bring this cause of action against the Defendant, Hamilton BeaCh/Proctor Silex, Inc., and aver as follows: Backaround: 1. The Plaintiffs, Valerie B. Lamberton and David A. Lamberton, are adult individuals residing at 262 Willow Mill Park Road, Mechanicsburg, PA 17050-1764, and at all times relevant hereto are husband and wife. 2. The Defendant, Hamilton Beach/Proctor-Silex, Inc., is a corporation authorized to do business in the Commonwealth of Pennsylvania, whose business address in Pennsylvania is c/o CT Corporation System, 1515 Market Street, suite 1210, Philadelphia, Pennsylvania, 19102. 3. The Defendant in engaged in the business of design, manufacture, distribution and sale of coffee makers, which includes the glass carafe used in said coffee maker. 4. The Plaintiffs purchased a coffee maker with a glass carafe, which was designed, manufactured, distributed and sold to the Plaintiff, on October 23, 2000. 5. The Plaintiffs purchased the coffee maker with glass carafe, at Walmart, at which time it was in a sealed condition. A copy of the receipt is attached hereto and made a part thereof as Plaintiffs' Exhibit number 1. I. On January 25, 2001, at 6:00 p.m., Plaintiff, Valerie Lamberton, was performing a normal cleaning of the glass carafe when, without cause, justification, or warning, the carafe exploded, resulting in glass chards being propelled into the skin of her hands and wrist. 7. Plaintiff Valerie Lamberton suffered cuts and trauma to her hands, fingers, wrists, and other associated areas. 8. Solely as a result of the aforementioned occurrence, Plaintiff Valerie Lamberton was caused to suffer and sustain serious and debilitating bodily injuries including, but not limited to, sutures, trauma-induced carpal tunnel syndrome, scarring, 9. Plaintiff Valerie Lamberton further avers that as a direct and proximate result of the aforementioned occurrence, she has suffered a loss of her earnings and earning capacity. 10. Plaintiff Valerie Lamberton further avers that as a direct and proximate result of the aforementioned occurrence, she has been unable to attend to her normal and usual daily duties to her great detriment and loss, and that of her family. 11. Plaintiff Valerie Lamberton further avers that as a direct and proximate result of the aforementioned occurrence, she has been compelled, and shall continue to be compelled, to expend various and substantial sums of money for medical attention and medication, in an effort to alleviate and cure herself of the aforementioned injuries. 12. Plaintiff Valerie Lamberton further avers that as a direct and proximate result of the aforementioned conditions, she continues to be in need of surgery on her wrist to repair her carpal tunnel syndrome induced by the trauma of the explosion of the glass carafe. 13. Plaintiff Valerie Lamberton further avers that as a direct and proximate result from the aforementioned occurrence, she has suffered and continues to sustain a loss of everyday life enjoyment and pleasures to her great mental distress and overall discomfort, and that of her family. Count I - strict Liabilitv Plaintiff, Valerie B. Lamberton v. Defendant, Hamilton Beach/Proctor-silex 14. Plaintiff incorporates by reference each and every allegation in the preceding paragraph with the same force and effect as if they are more fully set forth in this particular Count. 15. The Defendant at all times was engaged in the design, manufacture, distribution and sale of the subject coffee maker and carafe, which was purchased by Plaintiffs. 16. The coffee carafe, which was purchased by the Plaintiffs at Walmart on October 23, 2000, was in a defective condition, and unreasonably dangerous to the user or consumer; therefore the Defendant is strictly liable to the Plaintiff. 17. The subject coffee carafe purchased by the Plaintiffs was at all times, prior to its purchase, in the exclusive control of the Defendant and/or its agents, and thus reached the Plaintiffs without a change in its condition from the time of its design and manufacture through the distribution process until the ultimate sale to the Plaintiff. 18. That the subject coffee carafe was in a defective and unreasonably dangerous condition at the time the Plaintiff purchased it. 19. As a direct and proximate result of the Defendant's negligence, carelessness and recklessness, Plaintiff has been caused to suffer and sustain extensive and severe injuries, as more fully set forth above. WHEREFORE, the Plaintiff demands judgment against the Defendant in excess of $35,000.00. Count II - Breach of ImDlied Warranty of Merchantabilitv Plaintiff, Valerie B. Lamberton v. Defendant, Hamilton Beach/Proctor-silex 20. Plaintiff incorporates by reference each and every allegation in the preceding paragraph of the same force and effect as if they are more fully set forth in this particular Count. 21. The Defendant was at all times pertinent hereto the designer and manufacturer, distributor and seller of the subject coffee carafe. 22. That the Defendant, by and through its agents, placed the subject coffee carafe in such a position as to be purchased by the Plaintiffs in their normal course of consumer purchases. 23. That the Defendant impliedly warranted by doing so, that the subject coffee carafe was merchantable and therefore fit for the ordinary purposes for which it was intended to be used. 24. That the Defendant's product was defective, harmful, and not merchantable or fit for use as it was intended. 25. Therefore, the Defendant breached its implied warranty of merchantability. WHEREFORE, the Plaintiff demands judgment against the Defendant in excess of $35,000.00. Count III - Breach of ImDlied Warranty for a Particular PurDose plaintiff, Valerie B. Lamberton v. Defendant, Hamilton Beach/Proctor-Silex 26. Plaintiff incorporates by reference each and every allegation in the preceding paragraph of the same force and effect as if they are more fully set forth in this particular Count. 27. The Defendant was at all times the pertinent designer, manufacturer and seller of the subject coffee carafe. 28. That the Defendant, by and through its agents, placed the subject coffee carafe in such a position as to be purchased by the Plaintiffs in their normal course of consumer purchases. 2t. The Defendant, in placing its product in the marketplace, knew or had reason to know of the particular use to which the Plaintiff would put the subject coffee carafe. 30. That the Defendant impliedly warranted that the subject coffee carafe was fit for the particular purpose, namely: making coffee and being cleaned afterwards, and that the Plaintiff would be handling the subject coffee carafe in her hands during its use. 31. That the Defendant designed, manufactured, distributed and sold the subject coffee carafe which was defective, harmful, and not fit for the particular purpose for which it was intended to be used. 32. Therefore, the Defendant has breached implied warranty for fitness for a particular purpose. WHEREFORE, the Plaintiff demands judgment against the Defendant in excess of $35,000.00. Count IV - Loss of Consortium Plaintiff, David Lamberton v. Defendant, Hamilton Beach/Proctor-silex 33. Plaintiff incorporates by reference each and every allegation in the preceding paragraph of the same force and effect as if they are more fully set forth in this particular Count. 34. As a direct and proximate result of the injuries to his wife, Valerie Lamberton, Plaintiff David Lamberton has been and may be compelled to expend monies for medical bills, medicine and other such expenses in his wife's medical treatment and care. 35. As a direct and proximate result of the injuries to his wife, Plaintiff David Lamberton has been and will be, deprived of his wife's aid, comfort, society, contribution, companionship and affection. 36. As a direct and proximate result of the injuries sustained by his wife, Plaintiff David Lamberton has been caused suffer loss of life's pleasures requiring him to perform the tasks that his wife would have once performed. WHEREFORE, the Plaintiff demands judgment against the Defendant in excess of $35,000.00 and therefore not bound for compulsory arbitration. Respectfully submitted, JFK.mf.pleadings\lamber.com 17108 VERIFICATION I, John F. King, Esquire, attorney for Plaintiffs, Valerie B. and David A. Lamberton, hereby acknowledge that they are the Plaintiffs in the within action; that they have read the foregoing Complaint; and the facts contained therein are true and correct to the best of their knowledge, information and belief. The Plaintiffs are temporarily out of this Court's jurisdiction and therefore unable to verify this Complaint. Their signed verification will follow upon their return. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S 4904, relating to unsworn falsification to authorities. Attorney B. Lamberton DAVID A. LAMBERTON and VALERIE B. LAMBERTON, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 02-3443 civil Term HAMILTON BEACH/PROCTOR- SILEX, INC. c/o CT CORPORATION SYSTEM, Defendant : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I have this date served a copy of the Complaint on the person named below in the manner of First Class Mail and fax transmission to: Nicholas Rodriguez-cayro, Esquire 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 Respectfully submitted, 17108 (717) 236-8000 (") C <:'" '-r",i'--;-: rJ;; ~:-~ .:..-..t..' ~:;'"' r . (J) --<:' ~i~ .-. "!.-;..-.t.._, (::'.,.~ (--'! po(""::. .-,;- ::::.. -< C:::J ') ---4 i~.) t',Tj :r- _:i,.... C) ,"-,) (11 :=~ ~f> :J.J -< DAVID A. LAMBERTON and VALERIE B. LAMBERTON, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 02-3443 civil Term HAMILTON BEACH/PROCTOR- SILEX, INC. c/o CT CORPORATION SYSTEM, Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, John F. King, Esquire, hereby certify that service of the filed Complaint of record in the above-captioned action was made upon Hamilton Beach/Proctor-Silex, Inc., by personal service of a true copy to the office of its attorney of record, as follows, on October 22, 2002: Nick Rodriguez-Cayro, Esquire 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 Respectfully submitted, J hn F. K~ng, o N. Second enthouse suite P.O. Box 984 Harrisburg, PA 17108 (717) 236-8000 (") C) 0 C N ~" :?.... 0 ..,f -ofG n o;J rf: -I ""- ~ N ZC- en.-.'?' w -<-,:: r:;;c, ::-- "?C), .,(. _,.,C i',) 'C, ~ ~.)o) '0 DAVID A. LAMBERTON and VALERIE B. LAMBERTON, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, No. 02-3443 Civil Term HAMILTON BEACH/PROCTOR-SILEX, INC" c/o CT CORPORATION SYSTEM, CIVIL ACTION - LAW Defendant PRAECIPE Kindly make the attached Verification part of the record in the above-captioned matter, Respectfully submitted, Date~~th)d- Jphn F. Ki ,Esquire ,I ~OO N. Seco' Street v1?enthouse Su't p, 0, Box 984 Harrisburg, PA 17108 (717) 236-8000 P,C. Attorney for Plaintiffs VERIFICATION We, Valerie B. and David ~ Lamberton, hereby acknowledge that we are the Plaintiffs in the within action; that we have read the foregoing Complaint; and the facts contained therein are belief. true and correct to the best of our knowledge, information and We understand that false statements herein are made subject falsification to to the penalties of 18 Pa.C.S. S 4904, relating to unsworn authorities. )~ . " .~1f0 vLe ie B. L~~berton /-. ~~ ~ - q ----:: ~ ~~ .,c Dav1d ~Lambe on A DAVID A, LAMBERTON and VALERIE B. LAMBERTON, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, No, 02-3443 Civil Term HAMILTON BEACH/PROCTOR-SILEX, INC, , c/o CT CORPORATION SYSTEM, Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE October 28, 2002, I served a copy of the within Praecipe and I, John F, King, Esquire, hereby certify that on class, postage prepaid, addressed as follows: Verification, by depositing same in the United States Mail, first Nick A, Rodriquez-Cayro, Esquire Elliott, Reihner, Siedzikowski, Egan & Balaban Governors' Row 27 N. Front Street p, 0, Box 1284 Harrisburg, PA 17108-1284 ~~",.P'C' (1<l~/ , J.h F. King, E qui e 600 tN, Second S t Pe~house Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 0 c.-:. ~ . , c '. ;1 Cl ,") ---I :"'~ ,..0 i".J f :~) --( ::u -~ -~ O~LE~039 HARRISBURG, PA IN THE UNITED STATES DISTRICT COURT NOV ~6cr02 FOR THE MIDDLE DISTRICT OF PENNSYIM'M\!\. D'A~A, CLERK Per Deputy Clerk 4:CV DAVID A. LAMBERTON and VALERIE B. LAMBERTON, Plaintiffs, v. CIVIL ACTION No. HAMIL TON BEACHlPROCTOR- SILEX, INC., a Delaware Corporation, Defendant. (Removed from the Court of Common Pleas of Cumberland County, No. 02-3443 Civil Term) NOTICE OF REMOVAL TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA: Defendant Hamilton Beach/Proctor-Silex, Inc. hereby files this Notice of Removal of a civil action from the Court of Common Pleas of Cumberland County, Pennsylvania to the United States District Court for the Middle District of Pennsylvania. Removal is pursuantto 28 U.S .C. S 1441 (a) and S1446, Grounds for removal are particularly stated as follows: 1. This action was commenced on or about July 22, 2002 by the filing of a Praecipe for Writ of Summons in the Court of Common Pleas of Cumberland County, Pennsylvania, docketed at No, 02-3443 Civil Term. A true and correct copy of the Praecipe for Writ of Summons is attached hereto as Exhibit "A". 2. Subsequent to the service of a Rule to File a Complaint and the grant of additional extensions of time, on October 22, 2002, a Complaint was filed in the Court of Common Pleas of Cumberland County, Pennsylvania, docketed at No. 02-3443 Civil Term. A true and correct copy of the Complaint, as received by counsel for Defendant, is attached hereto as Exhibit "B". 3. There exists complete diversity of citizenship in this action. As stated in the Complaint (Exhibit "B"), the plaintiffs, David A. Lamberton and Valerie B. Lamberton are residents ofthe Commonwealth of Pennsylvania; and as stated in the attached Affidavit (the original of which is attached hereto as Exhibit "C"), the named defendant, Hamilton Beach/Proctor-Silex, Inc., is a Delaware corporation with its principal place of business in the Commonwealth of Virginia. 4. The amount in controversy, exclusive of interest and costs, exceeds the sum of $75,000, as more fully appears in the complaint, including: the complaint's allegation that Plaintiff Valerie Lamberton "was caused to suffer and sustain serious and debilitating bodily injuries"; the complaint's allegation that Plaintiff Valerie 2 Lamberton" suffered a loss of her earnings and earning capacity"; and the complaint's allegation that Plaintiff Valerie Lamberton "continues to be in need of surgery"; all of which, upon information and belief and without making any admissions regarding the merits of Plaintiffs' case, if Plaintiffs are successful would result in a benefit to Plaintiffs in an amount valued in excess of $75,000 to Plaintiffs. 5. This Court has original jurisdiction over this action pursuant to 28 U.S.c. 9 1332. 6. Removal to this Court is proper under 28 U.S,C. 9 1441(a). 7. Defendant Hamilton Beach/Proctor-Silex, Inc. consents to removal of this action to federal jurisdiction, 8, The undersigned counsel is authorized to file this Notice of Removal on behalf of Defendant Hamilton BeachIProctor-Silex, Inc. 9. This Notice of Removal is being timely filed within thirty (30) days after receipt of copies of the initial pleading in this action that sets forth the claim for relief upon which this action or proceeding is based, 10. Copies of all papers, pleadings and orders received or filed to date are further described below, and are attached hereto as Exhibits "D" through "I", respectively. 3 a. August 26, 2002 - Entry of Appearance by counsel for Defendant (Exhibit "D"); b, August 28, 2002 - Praecipe and Rule to File A Complaint (Exhibit "E"); c, August 28, 2002 - Defendant Hamilton Beach/Proctor-Silex, Inc.'s Motion for a Protective Order (Exhibit "F"); d. August 28, 2002 - Defendant Hamilton Beach/Proctor-Silex, Inc.'s Memorandum of Law in Support of Its Motion for a Protective Order (Exhibit "G"); e. September 3, 2002 - Order of Court (Exhibit "H"); f. October 3,2002 - Agreement Pursuant to Rule 237.2 to Extend Time to Plead Following Ten-Day Notice (Exhibit "I"), 11. The Defendant, by the act of filing this Notice of Removal, does not waive any rights or objections, and it expressly preserves all other rights and claims it may have had or has. 12, In the event that the Plaintiffs file a motion to remand this action, the Defendant respectfully requests the opportunity to respond thereto including the opportunity to present evidence as may be appropriate. 4 WHEREFORE. notice is given that this action is removed from the Court of Common Pleas of Cumberland County, Pennsylvania to the United States District Court for the Middle District of Pennsylvania. Respectfully submitted, ELLIOTT REIHNER SIEDZIKOWSKI EGAN & BALABAN ~ ichael V. rown, Esquire Pa. I.D. 9984 Nick A. Rodriguez-Cayro, Esquire Pa. I.D, #86046 Governors' Row 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 (717) 234-3282 (717) 233-4264 (facsimile) mvb@erse.com nar@erse.com Date: October 12, 2002 Attorneys for Defendant G:\ERSE&BICLlENTSI I 0254-007\Removal, doc 5