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HomeMy WebLinkAbout95-01776 - .; -. ~' . . . . . ,'. . . .. . .< it ,.., '.' . . \' '\:,,;:.,;' ' ~ ,...... , . . , ,. ,'" .. ,_. i ., ,- " <}. ;::.. ' . . .c' ,./" "if;" .::.:,' .' . .' '... . '. ;;..'Y':;': ;;. . : r. . .: .'lft . ~,'" .......< . \ .' '. -c. .. i": ,. ":;,...... :. ;c':': .:.".... "i .':' .,.. ; <.::. '..": .' .,' \i..;; :. ."j. .:::~..:r '.> . : . ;~./:I'" ".,' . "'1 ,',..:. :......:. :"'. ';; ....'. ;' ':"'c';<, j~,' .' '; '..: ;:':,............,i; . ',' '" ,;;. ,...... ,'",.. ,c.: j ; ..,,:' . '"c .' . ." . :;,~;.:;{ .:,;:' ,"""':. ..... .-' . ,'.. .....:i...'!...:..'\l :i':';"" :v'> "..:,:;'~' ,'. , :'" " . . ",., ". '..'W. ..... "'. " c' ~, .,./.' . 'D. :,{., ... · '. .', ,:J":':.' . ':..".: . , ;" Y"; :~;,<i;" ,.:'0' >..... '.~"...;.,.' .': ' '.' , C'..; " .,:i';' ,',. .," '; ..' .';" ,f . '. ;".' ,/;r::" :C. ' :1. , . '.. . .' . '. .', ,'" <.' 't .,' ~. I' '.' ..." .. .' ! ." J ' .', .. C, n' . '" .. ..' :>.. :~~." <': 'ki .. ". .. '. .. ' " ': ,.' 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",,;.'.,: ", ':," " ',:C' . ,.3::' ,,'..... .c. ,.c: " ':;:,.; ..,~~i~~:it~';';i~,;~:~r~;~':':r~~:~': :"'~':~~5~R] ~~igffc;: "....:-. .' ~," ~;1$'!1'1i:~? ;. ,. ',,,",' .f;,.' ' ..;. . ," ': '." """', ", '. ,;.. . .. " 1:..,,, ".; , .{: . " .~, ' ., ;.. . .',,:. -:. e ~ 0, .. . -7 C)) J ~ r J .,:.' ..3 c:- c- . '.. "::;j~;f: .'f ..".,--~ "~~ ,,,,,' . >. . .:,ji,i . ~r .. SOLOMON & DiPIERO, P.C. By: Andrew E. DiPiero, Jr., Esquire Attorney I.D. No. 34671 Suite 1301, Constitution Place 325 Chestnut Street Philadelphia, PA 19106 Attorney for Plaintiffs (215) 922-7000 CHRISTIAN HOKE and . COURT OF COMMON PLEAS . BETH HOKE, husband and wife OF CUMBERLAND COUNTY v. . No. 3455 Civil, 1993 . . . PLANTRONICS SANTA CRUZ CIVIL ACTION - LAW and AUDIO PROFESSIONAL HEARING . JURY TRIAL DEMANDED . AID CENTER . . and . . PAUL R. KNAUB . . CHRISTIAN HOKE and BETH HOKE, husband and wife : . . v. . . . . AMERICAN TELEPHONE AND . . TELEGRAPH COMPANY . . CHRISTIAN HOKE and BETH HOKE, husband and wife v. DENRO, INC. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 95-1761 - Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 95-1776 - Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED / MOTION FOR CONSOLIDATION OF ACTIONS 1. The three above-captioned actions arise from the same incident, which occurred on April 8, 1993. 2. Plaintiff Christian Hoke sustained serious and permanent injuries, including permanent loss of hearing in his right ear, ORI91~\,ll rU((L ? IJ I j<; : ,?'t,(;~' Cu; I /993 while engaged in his employment as an Air Traffic Controller at the Capitol City Airport. 3. Subsequent to filing the initial lawsuit against Plantronics, Santa Cruz, Audio Professional Hearing Aid Center and Paul Knaub, the Plaintiffs filed two subsequent actions: one action against Denro, Inc., the manufacturer of the communications console that was located in the control tower of the Capitol City Airport at the time of the aforementioned incident involving Christian Hoke; and, another action against AT&T which was responsible for the landline communications into the control tower at the time of the incident. 4. The alleged factual issues will be based upon the same incident. 5. The witnesses with respect to liability issues and damages in the three above-captioned lawsuits will be the same. 6. Plaintiffs aver that it would be in the interest of all parties, as well as in the interest of judicial economy, for the three above-captioned lawsuits to be consolidated for all discovery, pretrial and trial purposes. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue an Order consolidating the above three cases for all discovery, pretrial and trial purposes. SOLOMON & DiPIERO, P.C. BY:~ (ted Andrew E. DLPLero Jr. Attorney for Pl to tiffs . CERTIFICATE OF SERVICE This is to certify that copies of the foregoing document have been served on the following persons by mailing copies of same via United States First Class Mail on :::;;,c.p:;t 20 addressed as follows: , 1995 KAREN S. COATES, ESQUIRE THOMAS, THOMAS & HAFER 305 NORTH FRONT STREET, 6TH FLOOR P. O. BOX 999 HARRISBURG, PA 17108 CHRISTOPHER C. CONNER, ESQUIRE METTE, EVANS & WOODSIDE 3401 NORTH FRONT STREET P. O. BOX 5950 HARRISBURG, PA 17110-0950 THOMAS W. HELD, CLAIM REPRESENTATIVE (INSURANCE FOR AT&T) WAUSAU INSURANCE COMPANY 1700 MARKET STREET, SUITE 1100 PHILADELPHIA, PA 19103 DENRO, INC. 9318 GAITHER ROAD GAITHERSBURG, MD 20877 SOLOMON & DiPIERO, P.C. By .~ I I, i I By the Court, J Wesley ANDREW E. DiPIERO, JR., ESQUIRE Suite 750 The Curtis Center 601 Walnut street Philadelphia, PA 19106 For the Plaintiffs KAREN S. COATES, ESQUIRE 305 North Front street 6th Floor P.O. Box 999 HarriSburg, PA 17108 For Defendant Plantronics Santa Cruz EVELYN W. REICHMAN, ESQUIRE 1700 Atlantic Building 260 South Broad Street Philadelphia, PA 19102 For Defendant American Telephone and Telegraph Company JAYSON R. WOLFGANG, ESQUIRE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 For Defendants Audio Professional Hearing Aid Center and Paul R. Knaub JOHN M. WILLIS, ESQUIRE 1700 Market street suite 3000 Philadelphia, PA 19103-3930 For Defendant Denro, Inc. wcy c...r-", (>I<-......c..\, I J ~l qj" ...!."P. - , . ... .--' " RUTTER & DiPIERO By: Andrew E. DiPiero, Jr., Esquire Attorney I.D. No. 34671 The Curtis Center, Suite 750 601 Walnut Street Philadelphia, PA 19106 (215)925-9200 Attorney for Plaintiffs CHRISTIAN HOKE and BETH HOKE, husband and wife v. . COURT OF COMMON PLEAS . . OF CUMBERLAND COUNTY . : No. 3455 Civil, 1993 : . CIVIL ACTION - LAW . : . JURY TRIAL DEMANDED . . . . . : PLANTRONICS SANTA CRUZ and AUDIO PROFESSIONAL HEARING AID CENTER and PAUL R. KNAUB CHRISTIAN HOKE and . COURT OF COMMON PLEAS . BETH HOKE, husband and wife : OF CUMBERLAND COUNTY . . v. . No, 95-1761 - Civil Term . . CIVIL ACTION - LAW . AMERICAN TELEPHONE AND : TELEGRAPH COMPANY : JURY TRIAL DEMANDED CHRISTIAN HOKE and : COURT OF COMMON PLEAS ./ BETH BOKE, husband and wife : OF CUMBERLAND COUNTY . . v. : No. 95-1776 - Civil Term . CIVIL ACTION - LAW . DENRO, INC. . JURY TRIAL DEMANDED . S TIP U L A T I 0 H AND NOW, this 2l~-t day of f~l.",,)~"? , 1996, it is hereby stipulated and agreed by and between counsel for the parties hereto that the Federal Aviation Administration is hereby authorized to release the Star Set II headset which is referenced in Plaintiffs' Complaints to Plaintiffs' counsel Andrew E. DiPiero, Jr, It is hereby further agreed that counsel for Plaintiff O\~...It{/0d l .[?LE< L "PiSS ;)/)'119~ rJ. ,( loe: L'Ul 1(3 McKISSOCK & HOFFMAN, P.C. BY: John M. Willis Identification No.: 71857 1700 Market Street Suite 3000 Philadelphia, PA 19103 (215) 246-2100 Attorney for Defendant Denro, Inc. CHRISTIAN HOKE and BETH HOKE, husband & wife . . . . COURT OF COMMON PLEAS CUMBERLAND COUNTY v. : CIVIL ACTION . . . . JURY TRIAL DEMANDED No. 95-1776 DENRO, INC. . . . . . . ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance as attorneys for defendant, Denro, Inc. in the above matter. McKISSOCK & HOFFMAN, P.C. BY: ~ John M. Willis Attorney for Defendant Denro, Inc. DATED: ~ 0. fff.r U") ;r> '::,- ..., :3: '.. -cr '- .: ::2 .'7 .-I <n ,....oJ ..... '." -, ..., c, RUTTER & DiPIERO By: Andrew E. DiPiero. Jr., Esquire Attorney I.D. No. 34671 The Curtis Center, Suite 750 601 Walnut Street Philadelphia, PA 19106 Attorney for Plaintiffs (215) 925-9200 CHRISTIAN HOKE and BETH HOKE, husband and wife 627 Roosevelt Avenue York, PA 17404 . . COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION No. 95-1776 . . . . . . . . v. . . . . DENRO, INC. 9318 Gaither Road Gaithersburg, MD 20877 . . . . . . JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE Andrew E. DiPiero, Jr., Esquire, being duly sworn, deposes and says that he is the attorney for the Plaintiffs and that the following facts are true and correct to the best of his knowledge, information and belief: 1. A true and correct copy of the Civil Action Complaint filed in this action was served upon Defendant Denro, Inc., by placing a copy of same in the United States Mail, certified mail, return receipt requested on October 25, 1995, addressed as follows: Denro, Inc., 9318 Gaither Road, Gaithersburg, MD 20877. 2. On October 30, 1995, the United States Postal Service returned to me the green signed receipt for certified mail No. Z-089- CERTIFICATE OF SERVICE This is to certify that copies of the foregoing document have been served on the following persons by mailing copies of same via united States First Class Mail on jV~rf. I , 1995 addressed as follows: KAREN S. COATES, ESQUIRE THOMAS, THOMAS & HAFER 305 NORTH FRONT STREET, 6TH FLOOR P. O. BOX 999 HARRISBURG, PA 17108 CHRISTOPHER C. CONNER, ESQUIRE METTE, EVANS & WOODSIDE 3401 NORTH FRONT STREET P. O. BOX 5950 HARRISBURG, PA 17110-0950 THOMAS W. HELD, CLAIM REPRESENTATIVE (INSURANCE FOR AT&T) WAUSAU INSURANCE COMPANY 1700 MARKET STREET, SUITE 1100 PHILADELPHIA, PA 19103 JOHN M. WILLIS, ESQUIRE McKISSOCK & HOFFMAN 1700 MARKET STREET, SUITE 3000 PHILADELPHIA, PA 19103-3930 RUTTER & DiPIERO By , I (1M : ,I .~_1_21or__, 181lOwlIhtorecelvelhe ,'I .~_a.4o,ond4ll. IoIIowtng Mrvtc:e. (loran ,1._::':......ond_llIIlho......otlhlo............con.......1hIo .xttalle): i.':,. , .::n.l:"...... 1110 irani 011110......... or llIIlho -. _ _ not 1. [J Add,.....'. Add.... :. .e:',:!-I1oIt.mR....,,__llIIlho........_Iho__, 2. [J RNlrIctIdDAllVlry '. .ThoI1olt.m-.,.wlI~IO_Iho_..._ondlho_ I' : Ii -- 'ConauIlpoatmuta,Iorlll, , 13' Ar1IcIe Add_to: .... NLmber ~ /.9. ~ -(;?tf'-zP" -71. g , 'UA-o J 14 ;'L._, JI? <lb. S.rvIce ~ I 31 P. ~ /~ [J Ragfalerad )!: Ce ftld !' . "11,4 1-01''17 CJ exp....MaD CJ lneurad ! 1 /,.; CJ RaIum ~ for Man:hancbI CJ coo 7. 0.,. of 011 ry ~ Ib I 8, Add.. .'. .. snd fell & paid} ~ 5, R_1v1d By: (PrInt NsmII) II 8. Sl '~ X\ :.!1 PS Form ~ ~. -' -"- . '.'PLAlNTlFF'S ~I~, r I f I U"O en - ,....., .. ,. ,r" ,_ :!-~~ W("'Jz ~~,.u~ ::::i..r.:.o.::; Ql-..c,.. I "..-ten ~""""'-'z h.I.,..x: z: ;~~L-lt~~w .. 7.;;.~ .' ~ '~; (,.') :c a- N Lt1 '.'V') =- ~ .. . CHRISTIAN HOKE and BETH HOKE, husband & wife COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW v. PLANTRONICS SANTA CRUZ and AUDIO PROFESSIONAL HEARING AID CENTER and PAUL R. KNAUB JURY TRIAL DEMANDED No. 93-3455 CIVIL, 1993 ,,' . . . . . . CHRISTIAN HOKE and BETH HOKE, husband and wife COURT OF COMMON PLEAS CUMBERLAND COUNTY v. CIVIL ACTION - LAW JURY TRIAL DEMANDED . . . . AMERICAN TELEPHONE AND TELEGRAPH COMPANY . . . . No. 95-1761 - CIVIL TERM CHRISTIAN HOKE and BETH HOKE, husband and wife . . COURT OF COMMON PLEAS CUMBERLAND COUNTY : v. CIVIL ACTION - LAW . . . . . . DENRO, INC. JURY TRIAL DEMANDED : No. 95-1776 - CIVIL TERM ~ : ORDER OF COURT AND NOW, this 14th day of June, 1996, upon consideration of the attached stipulation of counsel dated June 12, 1996, the stipulation is approved and its terms are entered as aD order of court. J, js ALED-OFFlCE OF T1';: Fnnn!(1~!OTARY 96 JUH 111 Pll 3: 56 cu.,." ," ' I' 'U\lfJ hl~:'i;..,/.'..:.J \..A,; 'i, I PENNSYLVN~IA GI . U ral , III j boi '" .-l 0 III lit = ral C ei is . , 0 10 'U .rot C GI ral 104 ..-l... .-l e- al ~lIt~ ::I III .S IQ.......-l .-l C ., II ......."" CI) ... z J Ill, og"'''' GI If :- <~ ;1 104 III 104< , ... J! Glral_c...lIt U rall-l ,..I-l 0 III ~ boi:a lit lit 'u . 10 0 :- ......c ... III < ~ =c . ... c c , . ::I'" ~ Z U U I-l.-lC.c:, ... z< z ... c... a.a I ::!lc I-l ral :.,,,, III .-l In . Z GI.-l GI GI III ti~ . o e .c:'tl I 0 GI!j GlU Ill~ I-lal II: 0... .-l ~ II: III Z ~~"""In'" 05 ~ 1:0"'::IN.c: <Ul < Ill", lit... .. I I I I i I I CHRISTIAN HOKE and I BETH HOKE, husband and wife I v. I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL DIVISION - LAW . . NO. 95-1776 . . : . . . . DENRO, INC. . . JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20 I days after this Complaint and Notice are served, by entering a written appearance personally or by an 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 for 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. COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE, FOURTH FLOOR 1 COURTHOUSE SQUARE CARLISLE, PA 17013 Telephone: (717) 240-6200 RUTTBR & DiPIBRO By: Andrew E. DiPiero. Jr., Esquire Attorney 1.0. No. 34671 The curtis Center, suite 750 601 Walnut Street Philadelphia, PA 19106 Attorney for Plaintiffs (215) 925-9200 CHRISTIAN HOKE and BETH HOKE, husband and wife 627 Roosevelt Avenue York, PA 17404 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION No. 95-1776 . . . . . . . . v. . . . . . . DENRO, INC. 9318 Gaither Road Gaithersburg, MD 20877 : . . . . JURY TRIAL DEMANDED COMPLAINT Plaintiffs Christian Hoke and Beth Hoke, husband and wife, by their attorneys, RUTTER & DiPIERO, claim of Defendant Denro, Inc., sums in excess of Fifty Thousand Dollars ($50,000.00) upon causes of action whereof the following is a statement: 1. Plaintiffs Christian Hoke and Beth Hoke are individual citizens of the Commonwealth of Pennsylvania. 2. Defendant Denro, Inc., (hereinafter referred to as "Denro") is a corporation organized and existing under the laws of the State of Maryland with a principal place of business located at 9318 Gaither Road, Gaithersburg, MD 20877. 3. At all times relevant hereto, Defendant Denro regularly conducted business in the Commonwealth of Pennsylvania. 4, At all times pertinent to the subject matter of this Complaint, Defendant Denro was in the business of designing, developing, testing, manufacturing, preparing, packaging, labeling, selling, distributing, supplying, marketing, advertising, clinically researching and installing various types of equipment used in the telecommunications field, including telecommunications switching systems and their individual component parts. 5. At all times pertinent to the subject matter of this Complaint, Defendant Denro designed, developed, tested, manufactured, prepared, packaged, labeled, sold, distributed, supplied, marketed, advertised, clinically researched and installed the telecommunications console and system known as the Integrated Communication Switching System (hereinafter referred to as "ICSS"), which was located in the control tower of the Capitol City Airport in New Cumberland, Pennsylvania, on April 8, 1993. 6. On or about April 8, 1993, Plaintiff Christian Hoke was engaged in his employment as an air traffic control specialist at the Capitol City Airport in New Cumberland, Pennsylvania. 7. At the aforesaid time and place, and while engaged in his employment as an air traffic control specialist, Plaintiff Christian Hoke was wearing a Starset II headset, which was equipped with a custom earpiece, when a very loud noise blasted over the ICSS communications system and through the telecommunications console manufactured by Denro and into his right ear causing him immediate sharp pain in his right ear and neck and other injuries and damages which will be described hereinbelow. 2 COUNT I - NEGLIGENCE Christian Hoke Vo nenro, Inc. a. Paragraphs 1 through 7 of this Complaint are incorporated by reference herein as though fully set forth at length. 90 The incident described in the foregoing paragraphs of this Complaint was caused by the carelessness and negligence of the Defendant, both generally and in the following particular respects: a. Failing properly to design, fabricate, manufacture, sell, distribute and/or supply the telecommunications console and its component parts, Le., the rcss system ("the product" hereafter) in a reasonably safe condition; b. Designing, fabricating, manufacturing, selling, distributing and/or supplying the product in a defective and dangerous condition; c. Failing to supply the product in a form which was adequate and safe for its intended use; do Failing to give adequate and sufficient warnings as to the reasonably foreseeable defects in the product, as to the reasonable, foreseeable accidents that could occur in the use or operation of the product, and as to the reasonably foreseeable dangers attendant in the use and operation of the product; 3 e. Failing to provide proper instructions so that the ultimate user and/or consumer would have sufficient information to operate the product in a safe manner; f. Failing to provide the product with adequate safety features including, but not limited to, a noise filter and/or noise suppressing device which would guard against loud noises and otherwise protect the user of the product from injury; g. Failing properly to test and/or to inspect the product to determine whether it could be used without injury by those persons who would ultimately operate the product; and h. Placing an unsafe product into the stream of commerce. 10. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 11. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large SlURS of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 4 12. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 13. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT II - STRICT LIABILITY Christian Hoke v. Denro, Inc. 14. Paragraphs 1 through 13 of this Complaint are incorporated by reference herein as though fully set forth at length. 15. Defendant Denro was at all times relevant hereto, and presently is, engaged in the business of designing, fabricating, manufacturing, selling, distributing and/or supplying products of the type used by Plaintiff Christian Hoke as set forth herein. 16. At the time that Defendant Denro designed, manufactured, sold, distributed and/or supplied the product (the ICSS 5 telecommunications console and system), it was in a defective condition, unreasonably dangerous to the ultimate purchaser and to the ultimate user and/or consumer, including Plaintiff Christian Hoke. 17. The product was at all times expected by Defendant to reach, and did in fact reach, the ultimate user and/or consumer, including Plaintiff Christian Hoke, without substantial change in the condition in which it was designed, manufactured, sold, supplied and/or distributed by Defendant. 18. By designing, manufacturing, selling, supplying and/or distributing the product in a defective condition unreasonably dangerous to the ultimate user and/or consumer, including Plaintiff Christian Hoke, Defendant is strictly liable pursuant to the Restatement (Second) of Torts, S402A. 19. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 20. As a direct and proximate result of the conduct of Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur 6 monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 21. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer I I I ~ usual activities, pursuits and pleasures. 22. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. excruciating and agonizing aches, pains, mental anguish, humiliation and embarrassment, as well as a limitation and restriction of his WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT III - MISREPRESENTATION Christian Hoke v. Denro, Inc. 23. Paragraphs 1 through 22 of this Complaint are incorporated by reference herein as though fully set forth at length. 24. Plaintiff Christian Hoke justifiably relied upon the representations made by Defendant Denro, both express and implied, concerning the quality and character of the product. 7 25. Defendant Denro is strictly liable to Plaintiff Christian Hoke pursuant to Section 4028 of the Restatement (Second) of Torts in that it misrepresented material facts concerning the character and dangers of the use of the product referred to in the foregoing paragraphs of this Complaint. 26. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body inClUding, but not limited to, profound sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 27. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment fOr his injuries. 28. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 8 29. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT IV - BREACH OF WARRANTY Christian Hoke v. Denro, Inc. 30. Paragraphs 1 through 29 of this Complaint are incorporated by reference herein as though fully set forth at length. 31. At the time the product was sold and ultimately used by Plaintiff Christian Hoke, the Defendant did expressly and/or impliedly warrant and/or guarantee the product (i.e., the ICSS telecommunications system) to be safe, merchantable, and fit for its ordinary purpose and/or its intended use. 32. At the time the product was sold and ultimately used by Plaintiff Christian Hoke, it was not of merchantable quality, nor was it fit for its ordinary purpose and/or intended use. 33. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound 9 I I I I sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 34. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 35. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 36. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. 10 CERTIFICATE OF SERVICE This is to certify that copies of the foregoing document have been served on the following persons by mailing copies of same via United States First Class Mail on (),;,,; ~ - '. .., , 1995 addressed as follows I DENRO, INC. 9318 GAITHER ROAD GAITHERSBURG, MD 20877 SOLOMON , DiPIERO, P.C. By l~~,- (~ O<iJ.. Andrew E. D P er Jr. Attorney for Plaintiffs VERIPICATION I hereby verify that all the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.B.A. 54904 relating to unsworn falsification to authoritiec. 1. Plaintiffs instituted the present action by filing a Praecipe for Writ of Summons against defendant, Denro, Inc. in the Court of Common Pleas of Cumberland County on or about April 6, 1995. Thereafter, Plaintiffs' Complaint was served on Denro, Inc. on October 30, 1995. A copy of said Complaint is attached hereto and marked as Exhibit "A", and is incorporated herein by reference as if fully set forth at length. A copy of plaintiffs' Affidavit of Service relating to that Complaint is attached hereto and marked as Exhibit "B". 2. Plaintiffs instituted an action against additional defendant American Telephone and Telegraph Company ("AT&T") by filing a Praecipe for Writ of Summons in the Court of Common Pleas of Cumberland County on or about April 6, 1995. Upon information and belief, plaintiffs thereafter filed and served a Complaint on AT&T. A copy of said Complaint is attached hereto and marked as Exhibit "C", and is incorporated herein by reference as if fully set forth at length. 3. Plaintiffs instituted an action against additional defendants Plantronics, Audio and Knaub by filing a Complaint against those defendants in the Court of Common Pleas of Cumberland County on or about March 15, 1994. A copy of said Complaint is attached hereto and marked as Exhibit "D", and is incorporated herein by reference as if fully set forth at length. 4. If the claims of plaintiffs are true, said claims being hereby expressly denied, then additional defendants AT&T, 2 Plantronics, Audio and Knaub are solely responsible for the loss in question. 5. In the alternative, if the claims of plaintiffs are true, said claims being hereby expressly denied, and defendant Denro is held responsible to plaintiffs for any sum, then additional defendants AT&T, Plantronics, Audio and Knaub are jointly and severally liable with defendant Denro to plaintiffs or liable over to defendant Denro for indemnity, contractual indemnity and/or contribution for any amounts for which defendant Denro may be held responsible. WHEREFORE, defendant Denro, Inc. hereby requests that judgment be entered in its favor and against additional defendants American Telephone and Telegraph Company, Plantronics Santa Cruz, AUdio Professional Hearing Aid Center and Paul R. Knaub or, in the alternative, that additi"nal defendants American Telephone and Telegraph Company, Plantronics Santa Cruz, Audio Professional Hearing Aid Center and Paul R. Knaub be held liable to defendant Denro, Inc. by way of indemnity and/or contractual indemnity; or, alternatively, pay contribution to any damages that may be awarded to plaintiffs and against defendant Denro, Inc. McKISSOCK & HOFFMAN, P.C. BY: ~ /itt/"--t' . Bruce McKissock John M. Willis Attorney for Defendant Denro, Inc. DATED: /J-!J..y( ,!' 3 JIlIC'CUO@ exhibit A RUTTER & DiPIERO By: Andrew E. DiPiero. Jr., Esquire Attorney I.D. No. 34671 The Curtis Center, Suite 750 601 Walnut Street Philadelphia, PA 19106 Attorney for Plaintiffs (215) 925-9200 CHRISTIAN HOKE and BETH HOKE, husband and wife 627 Roosevelt Avenue York, PA 17404 . . COURT OF COMMON PLEAS OF CUMBERLAND COUNTY . . CIVIL ACTION No. 95-1776 v. : DENRO, INC. 9318 Gaither Road Gaithersburg, MD 20877 . . : JURY TRIAL DEMANDED COMPLAINT Plaintiffs Christian Hoke and Beth Hoke, husband and wife, by their attorneys, RUTTER & DipIERO, claim of Defendant Denro, Inc., sums in excess of Fifty Thousand Dollars ($50,000.00) upon causes of action whereof the following is a statement: 1. Plaintiffs Christian Hoke and Beth Hoke are individual citizens of the Commonwealth of Pennsylvania. 2. Defendant Denro, Inc., (hereinafter referred to as .. Denro" ) is a corporation organized and existing under the laws of the State of Maryland with a principal place of business located at 9318 Gaither Road, Gaithersburg, MD 20877. 3. At all times relevant hereto, Defendant Denro regularly conducted business in the Commonwealth of Pennsylvania. 4. At all times pertinent to the subject matter of this Complaint, Defendant Denro was in the business of designing, developing, testing, manufacturing, preparing, packaging, labeling, selling, distributing, supplying, marketing, advertising, clinically researching and installing various types of equipment used in the telecommunications field, including telecommunications switching systems and their individual component parts. 5. At all times pertinent to the subject matter of this Complaint, Defendant Denro designed, developed, tested, manufactured, prepared, packaged, labeled, sold, distributed, supplied, marketed, advertised, clinically researched and installed the telecommunications console and system known as the Integrated Communication Switching System (hereinafter referred to as "ICSS"), which was located in the control tower of the Capitol City Airport in New Cumberland, Pennsylvania, on April 8, 1993. 6. On or about April 8, 1993, Plaintiff Christian Hoke was engaged in his employment as an air traffic control specialist at the Capitol City Airport in New Cumberland, Pennsylvania. 7. At the aforesaid time and place, and while engaged in his employment as an air traffic control specialist, Plaintiff Christian Hoke was wearing a Starset II headset, which was equipped with a custom earpiece, when a very loud noise blasted over the lCSS communications system and through the telecommunications console manufactured by Denro and into his right ear causing him immediate sharp pain in his right ear and neck and other injuries and damages which will be described hereinbelow. 2 COUNT I - NEGLIGENCE Christian Hoke v. Denro, Inc. 8. Paragraphs 1 through 7 of this Complaint are incorporated by reference herein as though fully set forth at length. 9. The incident described in the foregoing paragraphs of this Complaint was caused by the carelessness and negligence of the Defendant, both generally and in the following particular respects: a. Failing properly to design, fabricate, manufacture, sell, distribute and/or supply the telecommunications console and its component parts, Le., the rcss sy'stem ("the product" hereafter) in a reasonably safe condition; b. Designing, fabricating, manufacturing, selling, distributing and/or supplying the product in a defective and dangerous condition; c. Failing to supply the product in a form which was adequate and safe for its intended use; d. Failing to give adequate and sufficient warnings as to the reasonably foreseeable defects in the product, as to the reasonable, foreseeable accidents that could occur in the use or operation of the product, and as to the reasonably foreseeable dangers attendant in the use and operation of the product; 3 , I i , I , I I I I I I e. Failing to provide proper instructions so that the ultimate user and/or consumer would have sufficient information to operate the product in a safe manner; f. Failing to provide the product with adequate safety features including, but not limited to, a noise filter and/or noise suppressing device which would guard against loud noises and otherwise protect the user of the product from injury; g. Failing properly to test and/or to inspect the product to determine whether it could be used without injury by those persons who would ultimately operate the product; and h. Placing an unsafe product into the stream of commerce. 10. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 11. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 4 12. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 13. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT II - STRICT LIABILITY Christian Hoke v. Denro, Irc. 14. Paragraphs 1 through 13 of this Complaint are incorporated by reference herein as though fully set forth at length. 15. Defendant Denro was at all times relevant hereto, and presently is, engaged in the business of designing, fabricating, manufacturing, selling, distributing and/or supplying products of the type used by Plaintiff Christian Hoke as set forth herein. 16. At the time that Defendant Denro designed, manufactured, sold, distributed and/or supplied the product (the lCSS 5 I I I I I I I I , I I I telecommunications console and system), it was in a defective condition, unreasonably dangerous to the ultimate purchaser and to the ultimate user and/or consumer, including Plaintiff Christian Hoke. 17. The product was at all times expected by Defendant to reach, and did in fact reach, the ultimate user and/or consumer, including Plaintiff Christian Hoke, without substantial change in the condition in which it was designed, manufactured, sold, supplied and/or distributed by Defendant. 18. By designing, manufacturing, selling, supplying and/or distributing the product in a defective condition unreasonably dangerous to the ultimate user and/or consumer, including Plaintiff Christian Hoke, Defendant is strictly liable pursuant to the Restatement (Second) of Torts, S402A. 19. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 20. As a direct and proximate result of the conduct of Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur 6 monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 21. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation and embarrassment, as well as a limitation and restriction of his usual activities, pursuits and pleasures. 22. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT III - MISREPRESENTATION Christian Hoke v. Denro, Inc. 23. Paragraphs 1 through 22 of this Complaint are incorporated by reference herein as though fully set forth at length. 24. Plaintiff Christian Hoke justifiably relied upon the representations made by Defendant Denro, both express and implied, concerning the quality and character of the product. 7 25. Defendant Denro is strictly liable to Plaintiff Christian Hoke pursuant to Section 402B of the Restatement (Second) of Torts in that it misrepresented material facts concerning the character and dangers of the use of the product referred to in the foregoing paragraphs of this Complaint. 26. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 27. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 28. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation~ and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 8 29. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT IV - BREACH OF WARRANTY Christian Hoke v. Denro, Inc. 30. Paragraphs 1 through 29 of this Complaint are incorporated by reference herein as though fully set forth at length. 31. At the time the product was sold and ultimately used by Plaintiff Christian Hoke, the Defendant did expressly and/or impliedly warrant and/or guarantee the product (i.e., the lCSS telecommunications system) to be safe, merchantable, and fit for its ordinary purpose and/or its intended use. 32. At the time the product was sold and ultimately used by Plaintiff Christian Hoke, it was not of merchantable quality, nor was it fit for its ordinary purpose and/or intended use. 33. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Boke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound .- - 9 sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 34. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 35. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 36. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. 10 .I VERIFICATION I verify that: I am counsel for Plaintiffs in the above-captioned ction; I am authorized to take this Verification; and, the statements n this Pleading are true and correct to the best of my knowledge, "nformation, and belief. I understand that false statements herein are ." ,l (' {', /)7' ,'~il,L (,. ((/(/,,>, Andrew E. DiPiero ; Attorney for Pla~ / ; I I I j I I , ade subject to the penalties of 18 Pa. C.S. 54904 relating to unsworn alsification to authorities. 1II~l'QID@ " .. -,-~---~.... ,....,~,..--.. ~ RUTTER & DiPIERO By: Andrew E. DiPiero. Jr., Esquire Attorney 1.0. No. 34671 The Curtis Center, Suite 750 601 Walnut Street Philadelphia, PA 19106 Attorney for Plaintiffs (215) 925-9200 CHRISTIAN HOKE and BETH HOKE, husband and wife 627 Roosevelt Avenue York, PA 17404 : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY . . CIVIL ACTION v. No. 95-1776 DENRO, INC. 9318 Gaither Road Gaithersburg, MD 20877 . . JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE Andrew E. DiPiero, Jr., Esquire, being duly sworn, deposes and says that he is the attorney for the Plaintiffs and that the following facts are true and correct to the best of his knowledge, information and belief: 1. A true and correct copy of the Civil Action Complaint filed in this action was served upon Defendant Denro, Inc., by placing a copy of same in the United States Mail, certified mail, return receipt requested on October 25, 1995, addressed as follows: Denro, Inc., 9318 Gaither Road, Gaithersburg, MD 20877. 2. On October 30, 1995, the United States Postal Service returned to me the green signed receipt for certified mail No. Z-089- II 289-922. Attached hereto, incorporated herein and marked as Exhibit "A" is the original signed receipt. Sincerely, RUTTER & DiPIERO By drew E. D~P~ero, Counsel for Plain SWORN TO AND SUBSCRIBED BEFORE ME THIS DAY OF , 1995. Notary Public 2 CERTIFICATE OF SERVICE This is to certify that copies of the foregoing document have been served on the following persons by mailing copies of same via united states First Class Mail on jI/()rI. / , 1995 addressed as follows: KAREN S. COATES, ESQUIRE THOMAS, THOMAS & HAFER 305 NORTH FRONT STREET, 6TH FLOOR P. O. BOX 999 HARRISBURG, PA 17108 CHRISTOPHER C. CONNER, ESQUIRE METTE, EVANS & WOODSIDE 3401 NORTH FRONT STREET P. O. BOX 5950 HARRISBURG, PA 17110-0950 THOMAS W. HELD, CLAIM REPRESENTATIVE (INSURANCE FOR AT&T) WAUSAU INSURANCE COMPANY 1700 MARKET STREET, SUITE 1100 PHILADELPHIA, PA 19103 JOHN M. WILLIS, ESQUIRE McKISSOCK & HOFFMAN 1700 MARKET STREET, SUITE 3000 PHILADELPHIA, PA 19103-3930 RUTTER & DiPIERO By Andrew E. DiP~ero r. Attorney for Plaintiffs ~ SE DER: :!! OComploOo_lIlW1/Ol2''''__', I elso wish to ,_Ivo tho . oComploOo _ 3, 4.. end 4b, loIlowIng .orvlce. (fo, en : _PrinlYCUnarnllandaddrn. anlhlfeveru o'lhiI form so thai we can Nllm 1hI. extra 'ee): ~~~ B ~ 0- Iotmlotho.....of...molIploco,"'...thobod<U__... 1.0 Addre..oo'.Add,oss ~ :; o~:.ZlR"""_Roo_......thomdploco""""h"rtldo_, 2,0 Rostrtcted Oollvory ell oS _The Relurn Receipt _Iihow' 10 whom the lltidl was dtivetId and tM dati 'Ii. c "';.orlel, ' Consult poslmas1er 10' 100, - ~ 3, Ar1Ido Addressed to: 4a, Artida Number ~ ie" IOI~""~I.J. ~ -Df't1-ZP' -fl.. E Nv""~ ~ 4b, Sorvtco Typo il 3 1.:J 1 po ~ 0 Roglstered ~ Ca 'ned ';, ~ /11 0 Express Mail 0 Insured .5 1 / It IV z..o r 77 0 Rotum RacoIplIOl_sa 0 coo ~ 7, Oalo 01 Oar ry .l! III [ 8. Address o's i and 100 Is paid) r: 5, Recolved By: (Prin' Name) !; 6,SIg l!. X, !! PSFOIl1l Domesllc Relurn Receipt . ;l PLAINTIFF'S I ~,~, ltC.o.'D@ exhibit C RUTTER & DiPIERO By: Andrew E. DiPiero. Jr., Esquire Attorney 1.0. No. 34671 The Curtis Center, Suite 750 601 Walnut Street Philadelphia, PA 19106 Attorney for Plaintiffs (215) 925-9200 CHRISTIAN HOKE and . . BETH HOKE, husband and wife 627 Roosevelt Avenue . . York, PA 17404 . . v. : . . AMERICAN TELEPHONE AND . . TELEGRAPH COMPANY : c/o Prentice-Hall . . Corporation Systems, Inc. 100 Pine Street . . Harrisburg, PA 17108 . . COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION No. 95-1761-Civil Term JURY TRIAL DEMANDED COMPLAINT Plaintiffs Christian Hoke and Beth Hoke, husband and wife, by their attorneys, RUTTER & DiPIERO, claim of Defendant American Telephone and Telegraph Company sums in excess of Fifty Thousand Dollars ($50,000.00) upon causes of action whereof the following is a statement: 1. Plaintiffs Christian Hoke and Beth Hoke are individual citizens of the Commonwealth of Pennsylvania. 2. Defendant American Telephone and Telegraph Company (hereinafter referred to as "AT&T") is a corporation organized and existing under the laws of the State of New York with an address for service of process at Prentice-Hall Corporation Systems, Inc., 100 Pine Street, Harrisburg, PA 17108. 3. At all times relevant hereto, Defendant AT&T regularly conducted business in the Commonwealth of Pennsylvania. 4. At all times pertinent to the subject matter of this Complaint, Defendant AT&T was in the business of owning, operating, controlling and maintaining telecommunications equipment and land lines such as those which were used to transmit signals to and from the control tower at the Capitol City Airport in April of 1993. 5. At all times pertinent to the subject matter of this Complaint, Defendant AT&T owned, operated, controlled and maintained all of the telecommunications equipment and land lines which were used to transmit signals to and from the control tower at the Capitol city Airport in April of 1993. 6. On or about April 8, 1993, Plaintiff Christian Hoke was engaged in his employment as an air traffic control specialist at the Capitol City Airport in New Cumberland, Pennsylvania. 7. At the aforesaid time and place, and while engaged in his employment as an air traffic control specialist, Plaintiff Christian Hoke was wearing a Starset II headset, which was equipped with a custom earpiece, and was in the process of communicating with an aircraft while simultaneously on the land line when a very loud noise blasted over the ICSS communications system and through the telecommunications console manufactured by Denro and into his right ear causing him immediate sharp pain in his right ear and neck and other injuries and damages which will be described hereinbelow. 2 COUNT I - NEGLIGENCE ChristiaD Hoke v. AT&T 8. Paragraphs 1 through 7 of this Complaint are incorporated by reference herein as though fully set forth at length. 9. The incident described in the foregoing paragraphs of this Complaint was caused by the carelessness and negligence of the Defendant, both generally and in the following particular respects: a. Failing properly to maintain and control the land line communications equipment (hereinafter "the product") in a reasonably safe condition; b. Allowing dangerously high levels of sound to be transmitted without notice across the land line communications system; c. Failing to give adequate and sufficient warnings as to the transmission of unreasonably loud sounds over the land line communications system; d. Failing properly to test, inspect and/or maintain the land line communication system; e. Designing, fabricating, manufacturing, selling, distributing and/or supplying the product in a defective and dangerous condition; f. Failing to supply the product in a form which was adequate and safe for its intended use; g. Failing to give adequate and sufficient warnings as to the reasonably foreseeable defects in the product, as to the reasonable, foreseeable accidents that could occur in the use or 3 operation of the product, and as to the reasonably foreseeable dangers attendant in the use and operation of the product; h. Failing to provide proper instructions so that the ultimate user and/or consumer would have sufficient information to operate the product in a safe manner; i. Failing to provide the product with adequate safety features including, but not limited to, a noise filter and/or noise suppressing device which would guard against loud noises and otherwise protect the user of the product from injury; j. Failing properly to test and/or to inspect the product to determine whether it could be used without injury by those persons who would ultimately operate the product; and k. Placing an unsafe product into the stream of commerce. 10. As the direct and proximate result of the":'cts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 11. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money 4 - - and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 12. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 13. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT II - STRICT LIABILITY Christian Hoke v. AT&T 14. Paragraphs 1 through 13 of this Complaint are incorporated by reference herein as though fully set forth at length. 15. Defendant AT&T was at all times relevant hereto, and presently is, engaged in the business of designing, fabricating, manufacturing, selling, distributing and/or supplying products of the type used by Plaintiff Christian Hoke as set forth herein. 5 . 16. At the time that Defendant AT&T designed, manufactured, sold, distributed and/or supplied the product (the land line communications system), it was in a defective condition, unreasonably dangerous to the ultimate purchaser and to the ultimate user and/or consumer, including Plaintiff Christian Hoke. 17. The product was at all times expected by Defendant to reach, and did in fact reach, the ultimate user and/or consumer, including Plaintiff Christian Hoke, without substantial change in the condition in which it was designed, manufactured, sold, supplied and/or distributed by Defendant. 18. By designing, manufacturing, selling, supplying and/or distributing the product in a defective condition unreasonably dangerous to the ultimate user and/or consumer, including Plaintiff Christian Hoke, Defendant is strictly liable pursuant to the Restatement (Second) of Torts, S402A. 19. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 20. As a direct and proximate result of the conduct of Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be 6 monetary obligations to provide medicines, medical care, I I I i , , required in the future to expend large sums of money and to incur hospitalization, and other treatment for his injuries. 21. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation and embarrassment, as well as a limitation and restriction of his usual activities, pursuits and pleasures. 22. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT III - MISREPRESENTATION ChristiaD Hoke v. AT&T 23. Paragr~phs 1 through 22 of this Complaint are incorporated by reference herein as though fully set forth at length. 24. Plaintiff Christian Hoke justifiably relied upon the representations made by Defendant AT&T, both express and implied, concerning the quality and character of the product. 7 25. Defendant AT&T is strictly liable to Plaintiff Christian Hoke pursuant to Section 402B of the Restatement (Second) of Torts in that it misrepresented material facts concerning the character and dangers of the use of the product referred to in the foregoing paragraphs of this Complaint. 26. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 27. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 28. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 8 . I < 29. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT IV - BREACH OF WARRANTY Christian Hoke v. AT&T 30. Paragraphs 1 through 29 of this Complaint are incorporated by reference herein as though fully set forth at length. 31. At the time the product was sold and Ultimately used by Plaintiff Christian Hoke, the Defendant did expressly and/or impliedly warrant and/or guarantee the product (Le., the land line communications system) to be safe, merchantable, and fit for its ordinary purpose and/or its intended use. 32. At the time the product was sold and ultimately used by Plaintiff Christian Boke, it was not of merchantable quality, nor was it fit for its ordinary purpose and/or intended use. 33. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound 9 , I I I , I , I I I I ~ I I I I i . . t ~ sensorineural hearing loss of the right ear, which is permanent in nature, headaches and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 34. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 35. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, Dlental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 36. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendant a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. 10 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL DIVISION - LAW CHRISTIAN HOKE and BETH HOKE, husband and wife . . NO. 3455 Civil 1993 : v. : PLANTRONICS SANTA CRUZ and AUDIO PROFESSIONAL HEARING AID CENTER and PAUL R. KNAUB . . . . . . . . JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by ,an 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 for 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. COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE, FOURTH FLOOR 1 COURTHOUSE SQUARE CARLISLE, PA 17013 Telephone: (717) 240-6200 SOLOMON & DIPIERO, P.C. By: Andrew E. DiPiero, Jr. Identification No. 34671 Constitution Place, Suite 1301 325 Chestnut Street Philadelphia, PA 19106 (215) 922-7000 Counsel for Plaintiffs CHRISTIAN HOKE and BETH BOKE, husband and wife 101 Cockleys Drive Mechanicsburg, PA 17055 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY . . . . CIVIL ACTION No. 3455 Civil 1993 v. . " PLANTRONICS SANTA CRUZ 345 Encinal Street Santa Cruz, CA 95060 JURY TRIAL DEMANDED . . . . and . . AUDIO PROFESSIONAL HEARING AID CENTER 2192 South Queen Street York, PA 17402 . . : . . . . and . . . . PAUL R. KNAUB 2192 South Queen Street : York, PA 17402 : COMPLAINT Plaintiffs Christian Hoke and Beth Hoke, husband and.wife, by their attorneys, SOLOMON & DiPIERO, P.C., claim of Defendants Plantronics Santa Cruz, Audio Professional Hearing 'Aid Center and Paul R. Knaub, and each of them, both jointly and severally, sums in excess of Fifty Thousand Dollars ($50,000.00) upon causes of action whereof the following is a statement: 1. Plaintiffs Christian Hoke and Beth Hoke, husband and wife, are individual citizens of the Commonwealth of Pennsylvania residing at 101 Cockleys Drive, Mechanicsburg, PA 17055. 2. Defendant plantronics Santa Cruz (hereinafter referred to as "Plantronics") is a corporation organized and existing under the laws of the state of California with a principal place of business located at 345 Encinal street, santa Cruz, CA 95060. 3. At all times ,relevant hereto, Defendant Plantronics regularly conducted business in the Commonwealth of Pennsylvania. 4. Defendant Audio Professional Hearing Aid Center (hereinafter referred to as "Audio professional") is a corporation or other business organization organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business located at 2192 South Queen Street, York, PA 17402. 5. Defendant Paul R. Knaub (hereinafter referred to as "Knaub") is an individual residing in the Commonwealth of Pennsylvania, having his office at the Audio Professional Hearing Aid Center, 2192 South Queen Street, York, PA 17402. 6. At, all times relevant hereto, Defendant Knaub was a Board- certified audiologist who was acting as the agent, servant and/or employee of Defendant Audio Professional. 7. At all times pert.i:nent to the subject matter of this Complaint, Defendant Plantronics was in the business of designing, developing, testing, manufacturing, preparing, packaging, labeling, 'selling, distributing, supplying, marketing, advertising and clinically, researching certain types of communications headsets, including the starset II headset. B. At all times pertinent to the subject matter of this Complaint, Defendant Audio Professional was in the business of 2 designing, developing, testing, manufacturing, preparing, packaging, labeling, selling, distributing, supplying, marketing, advertising and clinically researching certain types of communications headsets and earpieces for hearing aids and headsets. 9. At all times pertinent to the subject matter of this Complaint, Defendant Knaub was in the business of designing, developing, testing, manufacturing, preparing, packaging, labeling, selling, distributing, supplying, marketing, advertising and clinically researching certain types of communications headsets and earpieces for hearing aids and headsets. 10. On or about April 8, 1993, Plaintiff Christian Hoke was engaged in his employment as an air traffic control specialist at the Capitol City Airport in New Cumberland, Pennsylvania. 11. At the aforesaid time and place, and while engaged in his employment as an air traffic control specialist, Plaintiff Christian Hoke was wearing a Starset II headset, which was equipped with a custom earpiece, when a very loud noise blasted over the communications system and into his right ear causing him immediate sharp pain in his right ear and neck and other injuries and damages which will be described hereinbelow. COUNT I - NEGLIGENCE Christian Hoke v. Plantronics 12. Paragraphs 1 through 11 of this Complaint are incorporated by reference herein as though fully set forth at length. 3 13. The incident described in the foregoing paragraphs of this Complaint was caused by the Clarelessness and negligence of the Defendant, both generally and in the following particular respects: a. Failing properly to design, fabricate, manufacture, sell, distribute and/or supply the Starset II communications headset ("the product" hereafter) in a reasonably safe condition; b. Designing, fabricating, manufacturing, selling, distributing and/or supplying the product in a defective and dangerous condition; c. Failing to supply the product in a form which was adequate and safe for its intended use; d. Failing to give adequate and sufficient warnings as to the reasonably foreseeable defects in the product, as to the reasonable, foreseeable accidents that could occur in the use or operation of the product, and as to the reasonably foreseeable dangers attendant in the use and operation of the product; e. Failing to provide proper instructions so that the ultimate user. and/or consumer would have sufficient information to operate the product in a safe manner; f. Failing to provide the product with adequate safety features including, but not limited to, a noise suppressing device which would guard against loud noises and otherwise protect the user of the product from injury; g. Failing properly to test and/or to inspect the product to determine whether it could be used without injury by those persons who would ultimately operate the product; and 4 h. Placing an unsafe product into the stream of commerce. l4. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. l5. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required.in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. l6. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction. of his usual activities, pursuits and pleasures. l7. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. 5 WHEREFORE, Plaintiff Christian Hoke claims of Defendants, and each of them, both jointly and severally, a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT II - STRICT LIABILITY ChristiaD Hoke v. Plantronics l8. Paragraphs 1 through 17 of this Complaint are incorporated by reference herein as though fully set forth'at length. 19. Defendant Plantronics was at all times relevant hereto, and presently is, engaged in the business of designing, fabricating, manufacturing, selling, distributing and/or supplying products of the type used by Plaintiff Christian Hoke. 20. At the time that Defendant Plantronics designed, manufactured',. sold, distributed. and/or supplied the product .(the communications headset), it was in a defective condition, unreasonably dangerous to the ultimate purchaser and to the ultimate user and/or consumer, including Plaintiff Christian Hoke. 21. The product was at all times expected by Defendant to reach, and did in fact reach, the ultimate user and/or consumer, including Plaintiff Christian Hoke, without substantial change in the condition in which it was designed, manufactured, sold, supplied and/or distributed by Defendant. 22. By designing, manufacturing, selling, supplying and/or distributing the product in a defective condition unreasonably dangerous to the ultimate user and/or consumer, including Plaintiff 6 Christian Hoke, Defendant is strictly liable pursuant to the Restatement (Second) of Torts, S402A. 23. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries. are permanent in nature. 24. As a direct and proximate result of the conduct of Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has: been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 25. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation and embarrassment, as well as a limitation and restriction of his usual activities, pursuits and pleasures. 26. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian' Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. 7 WHEREFORE, Plaintiff Christian Hoke claims of Defendants, and each of them, both jointly and severally, a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT III - MISREPRESENTATION Christian Hoke v. Plantronics 27. Paragraphs 1 through 26 of this Complaint are incorporated by reference herein as though fully set for~h at length. 28. Plaintiff Christian Hoke justifiably relied upon the representations made by Defendant Plantronics, both express and implied,. concerning the quality and character of the product. 29. Defendant Plantronics is strictly liable to Plaintiff Christian Hoke pursuant to Section 402B of the Restatement (Second) of Torts in that it misrepresented material facts concerning the character and dangers of the use of the product referred to in the foregoing paragraphs of this Complaint. 30. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood. vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 31. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, 8 Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 32. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restription of his usual activities, pursuits and pleasures. 33. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendants, and each of them, both jointly and severally, a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT IV - BREACH OF WARRANTY Christian Hoke v. Plantronics 34. Paragraphs 1 through 33 of this Complaint are incorporated by reference herein a& though fully set forth at. length. 35. At the time the product was sold and ultimately used by Plaintiff Christian Hoke, the Defendant did expressly and/or 9 impliedly warrant and/or guarantee the product to be safe, merchantable, and fit for its ordinary purpose and/or its intended use. 36. At the time the product was sold and ultimately used by Plaintiff Christian Hoke, it was not of merchantable quality, nor was it fit for its ordinary purpose and/or intended use. 37. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear and neck pain, together with a severe shock to his nerves and nervous .system, some or all of which injuries are permanent in nature. 38.' As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 39. As a direct and proximate result of the conduct of the Defendant as described in the foregoing' paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 10 40. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendants, and each of them, both jointly and severally, sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay; and brings this action to recover same. COUNT V - NEGLIGENCE Christian Hoke v. Audio Professional 41. Paragraphs 1 through 40 of this Complaint are incorporated by reference herein as though fully set forth at length. 42. The incident described in the foregoing paragraphs of this Complaint was caused by the carelessness and negligence of the Defendant, both generally and in the following particular respects: a. Failing properly to design, fabricate, manufacture, sell, distribute and/or supply the cUlitom ear piece ("the product" hereafter) used by Plaintiff with the . starset. II communications headset in a reasonably safe condition; b. Designing, fabricating, manufacturing, selling, distributing and/or supplying the product in a defective and dangerous condition; c. Failing to supply the product in a form which was adequate and safe for its intended use; 11 d. Failing to give adequate and sufficient warnings as to the reasonably foreseeable defects in the product, as to the reasonable, foreseeable accidents that could occur in the use or operation of the product, and as to the reasonably foreseeable dangers attendant in the use and operation of .the product; e. Failing to provide proper instructions so that the ultimate user and/or consumer would have sufficient information to operate the product in a safe manner; f. Failing to provide the product 'with adequate safety features including, but not limited to, a noise suppressing device which would guard against loud noises and otherwise protect the user of the product from injury; g. Failing properly to test and/or to inspect the product to determine whether it could be used without injury by those persons who would ultimately operate the product; and h. Placing an unsafe product into the stream of commerce. 43. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of.the right ear.and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 44. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may 12 continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 45. As'a direct and proximate result of the conduct of the Defendant as desoribed in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 46. As the direct and proximate result of the conduct of the Defendant as' described. in the foregoing paragraphs of this Complaint, Plaintiff Christian .Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE,. Plaintiff Christian Hoke claims of Defendants, and each of them, both jointly and severally, a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT VI - STRICT LIABILITY Christian Hoke v. Audio Professional 47 . Paragraphs 1 through 46 of this Complaint are incorporated by reference herein as though fully set forth at length. 48. Defendant Audio Professional was at all times relevant _ hereto, and presently is, engaged in the business of designing, 13 fabricating, manufacturing, selling, distributing and/or supplying products of the type used by Plaintiff Christian Hoke. 49. At the time that Defendant Audio Professional designed, manufactured, sold,. distributed and/or supplied the product (the custom earpiece), it was in a defective condition, unreasonably dange~ous to the ultimate purchaser and to the ultimate user and/or consumer, including Plaintiff Christian Hoke. 50. The product was at. all times expected by Defendant to reach, and did in fact reach, the ultimate user and/or consumer, including Plaintiff Christian Hoke, without substantial change in the condition in which it was designed, manufactured, sold, supplied and/or distributed by Defendant. 51. By. designing, manufacturing, selling, supplying and/or distributing the product in a defective condition unreasonably dangerous to the ultimate user and/or consumer, including Plaintiff Christian Hoke, Defendant is strictly liable pursuant to the Restatement (Second) of Torts, S402A. 52. As the direct. and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones; muscles, blood vessels,.tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 53. As a direct and proximate result of the conduct of Defendant as described in the foregoing paragraphs of the Complaint, 14 Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large Stuns of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 54. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs' of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation and embarrassment, as well as' a' limitation and restriction of his usual activities, pursuits and pleasures. 55. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian. Hoke claims of Defendants, and each of them, both jointly and severally, a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT VII - MISREPRESENTATION Christian Hoke v. Audio Professional 56. Paragraphs 1 through 55 of this Complaint are incorporated by reference herein as though fully set forth at length. 15 57. Plaintiff Christian Hoke justifiably relied upon the representations made by Defendant Audio Professional, both express and implied, concerning the quality and character of the product. 58. Defendant Audio Professional is strictly liable to Plaintiff ,Christian Hoke pursuant to Section 402B of the Restatement (Second) of Torts in that it misrepresented material facts concerning the character and dangers of the use of the product referred to in the foregoing paragraphs of this Complaint. 59. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 60. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to - incur monetary obligations to provide medicines, medical care, hospitalization, and other.treatment for his injuries. 61. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs. of this Complaint, Plaintiff Christian Hoke has suffered and will continue . to suffer excruciating and agonizing aches, pains, mental anguish, 16 humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 62. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendants, and each of them, both jointly and severally, a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT VIII - BREACH OF WARRANTY Christian Hoke v. Audio Professional . 63. Paragraphs 1 through 62 of this Complaint are incorporated by reference herein as though fully set forth at length. 64. At the time the product was sold and ultimately used by Plaintiff Christian Hoke, the Defendant did' expressly and/or impliedly warrant and/or' guarantee . the product to be safe, merchantable, and fit for its ordinary purpose and/or its intended use. 65. At the time the product was sold and ultimately used by Plaintiff Christian Hoke, it was not of merchantable quality, nor. was it fit for its ordinary purpose and/or intended use. 66. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling 17 injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 67. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 68. As a direct and proximate result of the conduct of the Defendant as described in the foregoing . paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 69. As the direct and proximate result of the conduct of the Defendant as described in' the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, .Plaintiff Christian Hoke claims of Defendants, and each of them, both jointly and severally, a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest 18 . , thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT IX - NEGLIGENCE Christian Hoke v. Knaub 70. Paragraphs 1 through 69 of this Complaint are incorporated by reference herein as though fully set forth at length. 7l. The incident described in the foregoing paragraphs of this Complaint was caused by the carelessness and negligence of the Defendant, both generally and in the following particular respects: a. Failing properly to design, fabricate, manufacture, sell, distribute and/or supply the custom earpiece ("the product hereafter) used by Plaintiff with the Starset II communications headset in a reasonably safe condition; b. Designing, fabricating, manufacturing, selling, distributing and/or supplying the product in a defective and dangerous condition; c. Failing to supply the product in a form which was adequate and safe for its intended use; d. Failing to give adequate and sufficient warnings as to the reasonably foreseeable defects in the product, as to the reasonable, foreseeable accidents that could occur in the use or operation of the product, and as to the reasonably foreseeable dangers attendant in the use and operation of the product; e. Failing to provide. proper instructions so that the ultimate user and/or consumer would have sufficient information to operate the product in a safe manner; 19 f. Failing to provide the product with adequate safety features including, but not limited to, a noise suppressing device which would guard against loud noises and otherwise protect the user of the product from injury; .g. Failing properly to test and/or to inspect the product to determine whether it could be used without injury by those persons who would ultimately operate the product; and h. Placing an unsafe product into the stream of commerce. 72. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right.ear and neck. pain, together with a severe Jhock to his nerves and nervous system, some or all of which injuries are permanent in nature. 73. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 74. As a direct and proximate result .of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, 20 humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 75. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendants, and each of them, both jointly and severally, a.sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for de~ay, and brings this action to recover same. t. i. " r t I : COUNT X - STRICT LIABILITY Christian Hoke v. Knaub 76. Paragraphs 1 through 75 of this Complaint are incorporated by reference herein as though fully set forth at length. 77. Defendant Knaub was at all times relevant hereto, and presently is, engaged in the business of designing, fabricating, manufacturing, selling, distributing and/or supplying products .of the type used by Plaintiff Christian Hoke. 78. At the time that Defendant Knaub designed, manufactured, sold, distributed and/or supplied the product (the custom earpiece), it was in a defective condition, unreasonably dangerous to the ultimate purchaser and to the ultimate user .and/or consumer, . including Plaintiff Christian Hoke. ( i 2l ., 79. The product was at all times expected by Defendant to reach, and did in fact reach, the ultimate user and/or consumer, including Plaintiff Christian Hoke, without substantial change in the condition in which it was designed, manufactured, sold, supplied and/or distributed by Defendant. 80. By designing, manufacturing, selling, supplying and/or distributing the product in a defective condition unreasonably dangerous to the ultimate user and/or consumer, including,Plaintiff Christian Hoke, Defendant is strictly liable pursuant to the Restatement (Second) of Torts, S402A. 81. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his'body including, but not limited to, profound sensorineural hearing loss of the 'right ear and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 82. As a direct and proximate result of the conduct of Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian. Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 83. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs' of this Complaint, Plaintiff Christian Hoke has suffered and will continue 22 to suffer excruciating and agonizing aches, pains, mental anguish, humiliation and embarrassment, as well as a limitation and restriction of his usual activities, pursuits and pleasures. 84. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendants, and each of them, both jointly and severally, a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to l:ecover same. COUNT XI - MISREPRESENTATION Christian Hoke v. Knaub 85. Paragraphs 1 through 84 of this Complaint are incorporated by reference herein as though fully set forth at length. 86. Plaintiff Christian Hoke justifiably relied upon the representations made by Defendant Knaub, both express and implied, concerning the quality and character of the product. 87. Defendant Knaub is strictly liable to Plaintiff Christian Hoke pursuant to Section 402B of the Restatement (Second) of Torts in that it misrepresented material facts concerning the character and dangers of the use of the product referred to in the foregoing paragraphs of this Complaint. 23 , , 88. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear and neck pain, together with a severe shock ,to his nerves and nervous system, some or all of which injuries are permanent in nature. 89. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of, the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 90. As a direct and proximate result of the conduct of. the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 91. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendants, and each of them, both jointly and severally, a sum in excess of Fifty 24 Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT XII - BREACH OF WARRANTY Christian Hoke v. Knaub 92. . Paragraphs 1 through 91 of this Complaint are incorporated by reference herein as though fully set forth at length. 93. At the time the product was sold and ultimately used by Plaintiff Christian Hoke, the Defendant did expressly and/or impliedly warrant and/or guarantee the product to be safe, merchantable, and fit for its ordinary purpose and/or its intended use. 94. At the time the product was sold and ultimately used by Plaintiff Christian Hoke, it was not of merchantable quality, nor was it fit for its ordinary purpose and/or intended use. 95. As the direct and proximate result of the acts of the Defendant, Plaintiff Christian Hoke sustained severe and disabling injuries to the bones, muscles, blood vessels, tissues, tendons and nervous system of his body including, but not limited to, profound sensorineural hearing loss of the right ear and neck pain, together with a severe shock to his nerves and nervous system, some or all of which injuries are permanent in nature. 96. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of the Complaint, Plaintiff Christian Hoke has been required in the past and may continue to be required in the future to expend large sums of money 25 and to incur monetary obligations to provide medicines, medical care, hospitalization, and other treatment for his injuries. 97. As a direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has suffered and will continue to suffer excruciating and agonizing aches, pains, mental anguish, humiliation, and embarrassment as well as limitation and restriction of his usual activities, pursuits and pleasures. 98. As the direct and proximate result of the conduct of the Defendant as described in the foregoing paragraphs of this Complaint, Plaintiff Christian Hoke has been prevented from attending to his usual daily duties and occupations and has suffered a consequent loss of earnings and earnings capacity. WHEREFORE, Plaintiff Christian Hoke claims of Defendants, and each of them, both jointly and severally, a sum in excess of Fifty Thousand Dollars ($50,000.00), together with lawful interest thereon, costs of suit and damages for delay, and brings this action to recover same. COUNT XIII Beth Hoke v. Defendants Plantronics, Audio Professional and Knaub 99. Paragraphs 1 through 98 of this Complaint are incorporated by reference herein as though fully set forth at length. 100. At all times pertinent hereto, Plaintiff Beth Hoke has been the lawful wife of Plaintiff Christian Hoke. 26 >- U) ~ 0; N j!:: wQ M ~.". O.,f, u6 - u~ LE~ c.: ..... n~ ~o 0\ ~~fn Cr: 0.. N .:JZ --'t! . -'-ai U:;f u j;:-; loLl icQ,. CJ ''; u. LO => 0 C'> U , , .. McKISSOCK & HOFFMAN, P.C. BY: J. Bruce McKissock Identification No.: 13036 BY: John M. Willis Identification No.: 71857 1700 Market street suite 3000 Philadelphia, PA 19103 (215) 246-2100 Attorney for Defendant Denro, Inc. CHRISTIAN HOKE and BETH HOKE, husband & wife COURT OF COMMON PLEAS CUMBERLAND COUNTY . . . . . . : CIVIL ACTION v. . . . . JURY TRZAL DEMANDED . . DENRO, INC. No. 95-1776 . . . . . . ANSWER WZTH NEW MATTER OP DEPENDANT DEHRO. INC. Defendant, Denro, Inc. ("Denro", "Answering Defendant") by and through its attorneys, McKissock & Hoffman, P.C., hereby asserts the following Answer and New Matter to the allegations in plaintiffs' complaint as follows: 1. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny this allegation. 2. Admitted. 3. Denied as stated. By way of further response, answering defendant states that while it has conducted business in the Commonwealth of Pennsylvania, since the allegations of this paragraph do not define what is meant by "all times relevant hereto" and "regularly conducted business", no further response can be given and therefore these allegations are denied as stated. 4. Admitted in part. Denied in part. It is admitted that answering defendant is in the business of designing, developing, testing, manufacturing packaging for shipment, selling, distributing, supplying, marketing, advertising and installing telecommunication switching systems. The allegations relating to preparing, labeling and clinically researching telecommunication switching systems and their individual components are so vague as to their meaning that no response can be given and therefore those allegations are denied as stated. By way of further response, answering defendant states that the telecommunication switching system which is the subject matter of this case was designed and manufactured in accordance with government specifications. 5. Admitted in part. Denied in part. Admitted in part. Denied in part. It is admitted that answering defendant is in the business of designing, developing, testing, manufacturing packaging for shipment, selling, distributing, supplying, marketing, advertising and installing telecommunication switching systems. It is further admitted that the Integrated Communication switching System referred to in this paragraph was located in the control tower of Capital City Airport in New Cumberland, Pennsylvania on April 8, 1993. The allegations relating to preparing, labeling and clinically researching telecommunication switching systems and their individual components are so vague as to their meaning that no response can be given and therefore those allegations are denied 2 as stated. By way of further response, answering defendant states that the telecommunication switching system which is the subject matter of this case was designed and manufactured in accordance with government specifications. 6. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly denies same. 7. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly denies same. WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant's favor and dismiss plaintiffs' complaint with prejudice. COUNT I - NEGLIGENCE Cbristian Hoke v. Denro, Inc. 8. Answering defendant hereby incorporates by reference, as though fully set forth at length, its responses to paragraphs 1 through 7 above. 9. (a)-(h) Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, answering defendant states the telecommunication switching system which is the subject matter of this litigation was 3 designed and manufactured in accordance with government specifications. 10. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 11. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 12. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and they are therefore denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 13. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 4 WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant I s favor and dismiss plaintiffs' Complaint with prejudice. COUNT II - STRICT LIABILITY Christian Hoke v. Denro, Inc. 14. Answering defendant hereby incorporates by reference, as though fully set forth at length, its responses to paragraphs 1 through 13 above. 15. Admitted. 16. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, answering defendant specifically denies that the ICSS Telecommunications Console and system designed and manufactured by Denro was defective and/or was unreasonably dangerous and/or posed a hazard or danger to the plaintiff. 17. Denied. After reasonable investigation, answering defendant is without knowledge or Information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 18. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, answering defendant specifically denies that it is strictly liable to plaintiff and states that the ICSS Telecommunication switching 5 system was designed and manufactured in accordance with government specifications. 19. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 20. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 21. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 22. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 6 WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant's favor and dismiss plaintiffs' Complaint with prejudice. COUNT XII - MXSRBPRBSBNTATION Christian Hoke v. Denro, Inc. 23. Answering defendant hereby incorporates by reference, as though fully set forth at length, its responses to paragraphs 1 through 22 above. 24. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 25. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, answering defendant denies that it is strictly liable to plaintiff and states that the ICSS Telecommunication switching system was designed and manufactured in accordance with government specifications. 26. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 7 27. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 28. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 29. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant's favor and dismiss plaintiffs' Complaint with prejudice. 8 COUNT IV - BREACH OP WARRANTY Christian Hoke v. Denro, Ina. 30. Answering defendant hereby incorporates by reference, as though fully set forth at length, its responses to paragraphs 1 through 29 above. 31. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. 32. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, answering defendant states that the product which is the subject matter of this litigation was in proper working order and/or was otherwise of merchantable quality and fit for its ordinary purpose and/or intended use at the time it was sold. 33. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 34. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge 9 or information sufficient to aamit or deny the allegations of this paragraph and accordingly aeny same. 35. Deniea. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 36. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering aefendant is without knowledge or information sufficient to admit or aeny the allegations of this paragraph and accordingly aeny same. WHEREFORE, aefendant, Denro, Inc., respectfully requests that this Honorable Court enter juagment in defendant I s favor and dismiss plaintiffs' Complaint with prejudice. COUNT V Beth Hoke Y. Denro, Inc. 37. Answering defendant hereby incorporates by reference, as though fully set forth at length, its responses to paragraphs 1 through 36 above. 38. Denied. After reasonable investigation, answering defendant is without knowleage or information sufficient to admit 10 or deny the allegations of this paragraph and accordingly deny same. 39. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant's favor and dismiss plaintiffs' Complaint with prejudice. NEW MATTER 40. Plaintiffs' Complaint fails to state a claim for which relief may be granted. 41. Plaintiffs' claims are barred by the applicable statue of limitations. 42. Answering defendant cannot be held liable to plaintiffs since, as a government contractor, it designed and manufactured the product which is the subject matter of this litigation in accordance with government specifications. 43. Plaintiff's own negligence was the sole cause of his alleged injuries and therefore this action is barred. 44. Plaintiff voluntarily and knowingly assume the risk of his injuries and therefore this action is barred. 11 45. Plaintitr's negligence was the proximate cause of his alleged injuries, the existence of any such injuries being denied, and plaintiffs' claims against answering defendant are limited or barred by plaintiff's comparative and/or contributory negligent. 46. No action or inaction on the part of answering defendant constitutes the proximate cause and/or legal cause of the injuries alleged in plaintiffs' complaint, the existence of such injuries being denied. 47. If the plaintiffs injuries as are alleged, such injuries being specifically denied, then such injuries were caused by the act and/or omissions of persons or entities other than the answering defendant over whom answering defendant has no control and over whom answering defendant is no way responsible. 48. If the plaintiff was injured by any product manufactured and/or sold by answering defendant, which is denied, then the product was used for a purpose and in a manner not intended by its manufacturer. 49. If plaintiff was injured by any product manufactured and/or sold by answering defendant, wqich is denied, then such injury resulted from a misuse of the product for which answering defendant cannot be held liable. 50. If plaintiff was injured by a product manufactured and/or sold by answering defendant, which is denied, then such product has been so materially modified or substantially changed that, at the time of the alleged injuries, the product no longer constituted a product of the answering defendant. 12 51. If plaintiff was injured by any product manufactured and/or sold by answering defendant, which is denied, then plaintiff's injuries were caused by the improper maintenance of the product and/or other causes which developed after the product left the control of answering defendant. 52. If plaintiff was injured by any product manufactured and/or sold by answering defendant, which is denied, then any such injuries were caused by a substantial deterioration of the product over an extended period of time so as to cause the product to no longer constitute a product of answering defendant. 53. If plaintiff was injured by any product manufactured and/or sold by answering defendant, which is denied, then said product met all applicable safety specifications, standards and regulations governing the design, manufacture and sale of the product. 54. If plaintiff was injured by any product manufactured and/or sold by answering defendant, it is averred that the product was manufactured according to the highest state of the art. 55. Any injuries and/or damages suffered by plaintiffs were caused by the superseding and/or intervening acts of plaintiffs and/or others, therefore barring any liability on the part of answering defendant. 56. Answering defendant did not extend and/or breach any warranties, either express or implied, to plaintiffs. 57. If plaintiffs were injured by any product manufactured and/or sold by answering defendant, which is denied, then said 13 BY: 9f2-tkl~ J. Bruce McKissock John M. Willis Attorneys for Defendant Denro, Inc. product met all governmental specifications, industry and trade standards relating to the design, manufacture and sale of product. 58. Any injuries and/or damages suffered by plaintiffs were caused solely as the result of and by a product manufactured and/or sold by entities other than answering defendant. WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant's favor and dismiss plaintiffs' Complaint with prejudice. McKISSOCK & HOFFMAN, P.C. DATED: /J-1'2-r/;r 14 ;?7~C~SOCK' ESQUIRB VERIPICATION I, J. BRUCI McKIssaCK, ESQUIRI, verify that the statements made in the foregoing ANSWER WITH NEW HATTER are true and correct to the best of my knowledge, information and belief. This verification is made subject to the penalties of 18 Pa. C.B.A. 54904 relating to unsworn falsification to authorities. DATE: (1-./).. 9 IT- RE: Hok. Y. D.....o ?i; '-0 ~ '" -', ;:s ,:.; ::-"iej" ~~ t-)r;'! ,- u..~~ Co c.: ~~ ~r~ O;2j ..._~ ~ 0 0"1 :-.{(? r" a.: '" ..) ,'- EE"' L' FSf6 T W "~la:: F: c;:. ~o IJ. In ..:1 0 C1'I U '\ RUTTER & DiPIERO By: Andrew E. DiPiero, Jr., Esquire Identification No. 3467l The curtis Center, Suite 750 601 walnut Street Philadelphia, PA 19106 Attorney for Plaintiffs (215)925-9200 CHRISTIAN HOKE and COURT OF COMMON PLEAS BETH HOKE, husband and wife OF CUMBERLAND COUNTY v. No. 95-1776 - Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED DENRO, INC. PLAINTIFFS' REPLY TO THE NEW MATTER OF DENRO. INC. 40. - 58. Denied. The allegations contained in paragraphs 40 through 58 inclusive are conclusions of law to which no further reply is required at this time. Moreover, by way of further answer, Plaintiff hereby incorporates by reference the allegations set forth in Plaintiffs' Complaint. In addition, Plaintiff specifically denies that he was negligence in any manner whatsoever. WHEREFORE, Plaintiffs request that Judgment be entered in their favor that is requested in their original Complaint. Respectfully submitted, BY: ~ CERTIFICATE OF SERVICE This is to certify that copies of the foregoing document have been served on the following persons by mailing copies of same via united States First Class Mail on December 29, 1995, addressed as follows: ; I , ~. i , I' KAREN S. COATES, ESQUIRE THOMAS, THOMAS & HAFER 305 NORTH FRONT STREET, 6TH FLOOR P. O. BOX 999 HARRISBURG, PA 17108 CHRISTOPHER C. CONNER, ESQUIRE METTE, EVANS & WOODSIDE 3401 NORTH FRONT STREET P. O. BOX 5950 HARRISBURG, PA l7ll0-09S0 THOMAS W. HELD, CLAIM REPRESENTATIVE (INSURANCE FOR AT&T) WAUSAU INSURANCE COMPANY 1700 MARKET STREET, SUITE l100 PHILADELPHIA, PA 19103 JOHN M. WILLIS, ESQUIRE McKISSOCK & HOFFMAN 1700 MARKET STREET, SUITE 3000 PHILADELPHIA, PA 19l03-3930 i i I ~ ! DiPIERO ~~ Andrew 3. DiPie Attorney for P By: : :- 0 ~ ~ ~ In " ~9 c;, :5~ z g' IEf?: :::: :<; ,. ....' c... --' 2;~; C-;;;:i c'-: N ;2~6; ~'lw.. I )',' ~t:..: - ;1'2 u... . ..',- ;! il.I] r~ .::C~ -, Q.1c... II... In ,..,.: 0 ::J C;' U , oJ CERTIFICATE OF SERVICE I, JOHN M. WILLIS, ESQUIRE, hereby certify that a true and correct copy of the PRAECIPB TO SUBSTITUTB VERI~ICATIOH was f i served on counsel listed below by united ~ states Mail, first class, postage prepaid on May , 1996. Andrew E. DiPiero, Jr., Esquire RUTTER & DiPIERO suite 750 The Curtis Center 601 Walnut Street Philadelphia, PA 19106-3307 I I' Karen S. coates, Esquire THOMAS, THOMAS & HAFER 305 North Front street, 6th Floor P.O. Box 999 Harrisburg, PA 17108 Christopher C. Conner, Esquire METTE, EVANS & WOODSIDE 3401 North Front street P.O. Box 5950 Harrisburg, PA 17110-0950 Evelyn Reichman, Esquire KELLY, McLAUGHLIN & FOSTER 1700 Atlantic Bldg. 260 South Broad Street Philadelphia, PA 19102-5092 Qh.iMJt5 J. Bruce McKissock John M. Willis Attorneys for Defendant State Farm Mutual Automobile Insurance Company McKISSOCK & HOFFMAN, P.C. BY: John M. Willis Identification No.: 71857 1700 Market street suite 3000 Philadelphia, PA 19103 (215) 246-2100 Attorney for Defendant Denro, Inc. CHRISTIAN HOKE and BETH HOKE, husband & wife COURT OF COMMON PLEAS CUMBERLAND COUNTY v. CIVIL ACTION - LAW PLANTRONICS SANTA CRUZ and AUDIO PROFESSIONAL HEARING AID CENTER and PAUL R. KNAUB JURY TRIAL DEMANDED No. 93-3455 CIVIL, 1993 CHRISTIAN HOKE and I COURT OF COMMON PLEAS BETH HOKE, husband and wife I CUMBERLAND COUNTY . v. . CIVIL ACTION - LAW . AMERICAN TELEPHONE AND I JURY TRIAL DEMANDED TELEGRAPH COMPANY I I No. 95-1761 - CIVIL TERM CHRISTIAN HOKE and . COURT OF COMMON PLEAS BETH HOKE, husband and wife I CUMBERLAND COUNTY I v. . CIVIL ACTION - LAW . DENRO, INC. . JURY TRIAL DEMANDED . . No. 95-1776 - CIVIL TERM . . PRAECIPE TO WITHDRAW THE JOINDER COMPLAINT AGAINST ADDITIONAL DEFENDANTS AMERICAN TELEPHONE AND TELEGRAPH COMPANY, PLANTRONICS SANTA CRUZ, AUDIO PROFESSIONAL HEARING AID CENTER AND PAUL R. KNAUB PURSUANT TO Pa.Civ.R.P. 22521b) Kindly withdraw the Joinder Complaint which was filed on behalf of defendant Denro, Inc. on December 28, 1995 naming American Telephone and Telegraph company, Plantronics Santa Cruz, CERTIFICATE OF SERVICE I, JOHN M. WILLIS, ESQUIRE, hereby certify that a true and correct copy of the PRAECIPE TO WITHDRAW THE JOINDER COMPLAINT was postage prepaid on June served on counsel listed below by United States Mail, first class, 2J , 1996. Andrew E. DiPiero, Jr., Esquire RUTTER , DiPIERO suite 750 The curtis Center 601 Walnut street Philadelphia, PA 19106-3307 ;.. Karen S. coates, Esquire THOMAS, THOMAS , HAFER 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108 r- , Jayson Wolfgang, Esquire METTE, EVANS , WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Evelyn Reichman, Esquire KELLY, McLAUGHLIN , FOSTER 1700 Atlantic Bldg. 260 South Broad Street Philadelphia, PA 19102-5092 02 i."ib-So) John M. Willis Attorney for Defendant Denro, Inc. 3 ~ ~ .... M . ;::L 6i :_j l~C! )~!; 0, c. '. :;c fEl ~ J._ -,~ ~,. . ':5..- < r- "'n "'0 -.)Z ~JL.I- C'-l ':'ra if,,, .". {2: S ~j 0.. -, '.,; ~ \.0 :3 en U . KELLY, McLAUGHLIN & FOSTER By I THOMAS P. BRACAGLIA, ESQUIRE FRANK S. NOFER, ESQUIRE I.D. Nos. 32330/69008 1700 Atlantic Building 260 South Broad Street philadelphia, PA 19102 Attorney for Defendant AT&T Corp., incorrectly identified American Telephone and Telegraph Company as , CHRISTIAN HOKE and I COURT OF COMMON PLEAS BETH HOKE, husband & wife : CUMBERLAND COUNTY : v. : CIVIL ACTION I DENRO, INC. : JURY TRIAL DEMANDED . . : No. 95-1776 ANSWER OF DEFENDANT, AMERICAN TELEPHONE AND TELEGRAPH COMPANY, TO THE NEW MATTER PURSUANT TO PA. RULE OF CIVIL PROCEDURE 22S2(d) IN THE NATURE OF A CROSSCLAIM OF DEPENDANT DENRO. INC. Defendant, American Telephone and Telegraph Company (hereinafter "Answering Defendant"l, by and through its attorneys, Kelly, McLaughlin & Foster, hereby answer the New Matter pursuant to Fa. Rule of Civil Procedure 2252 (dl of Defendant, Denro, Inc., as follows: 59. Denied. Answering Defendant denies any and all liability to the Plaintiffs and/or any Co-Defendant. By way of further answer, the allegations of Paragraph 59 of the New Matter Pursuant to Pa. Rule of Civil Procedure 2252(dl of Defendant, Denro, Inc., are denied as conclusions of law to which no responsive pleading is required of Answering Defendant. 81765.1 WHEREFORE, Answering Defendant, American Telephone and Telegraph Company, denies any liability to Plaintiffs or Co-Defendants and demands judgment in its favor and against Plaintiffs and Co-Defen- dants together with costs including counsel fees and any further relief deemed appropriate by this Honorable Court. KELLY, McLAUGHLIN & POSTER By: TH F 'K NOFER, ESQUIRE Attorne s for Defendant, American Telephone and Telegraph Company 81765.1 KELLY, McLAUGHLIN & FOSTER BYI THOMAS P. BRACAGLIA, ESQUIRE FRANK S. NOFER, ESQUIRE I.D. Nos. 32330/69008 1700 Atlantic Building 260 South Broad Street philadelphia, PA 19102 Attorney for Defendant AT&T Corp., incorrectly identified as American Telephone and Telegraph Company CHRISTIAN HOKE and BETH HOKE, husband & wife . COURT OF COMMON PLEAS . . CUMBERLAND COUNTY . I : CIVIL ACTION . . . JURY TRIAL DEMANDED . . . No. 95-1776 v. DENRO, INC. CERTIFICATE OF SERVICE THOMAS P. BRACAGLIA hereby certifies that he has served a true and correct copy of the attached Answer of Defendant, American Telephone and Telegraph Company, to the New Matter Pursuant to Pa. Rule of Civil Procedure 2252(d) in the Nature of a Crossclaim of Defendant Denro, Inc. upon all counsel listed below via United States mail, postage prepaid, this 26th day of June, 1996. Andrew E. DiPiero, Jr., Esquire THOMAS B. RUTTER, P.C. The Curtis Center, Suite 750 601 Walnut Street Philadelphia, PA 19106-3307 John M. Willis, Esquire McKISSOCK & HOFFMAN 1700 Market Street Philadelphia, PA 19103-3930 Karen S. Coates, Esquire THOMAS, THOMAS & HAFER 305 North Front Street Sixth Floor P.O.Box 999 Harrisburg, PA 17108 Jayson Wolfgang, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street Harrisburg, PA 17110 RACAGLIA, ESQUIRE FER, ESQUIRE or Defendants 81165.1 ~ 0 0- N ,-- J- ~ ..:z '5.,- ~!;.' ',.J,:",,) CI ::: -)~~ ~~- c... :1;::) G en .- ,.. "(/) 6' ,,~ :'2.': -' 'i6:i u: ~~~.: :'~";. F =:; 110... u. v> j (.) c', U . McKISSOCK & HOFFMAN, P.C. BY: J. Bruce McKissock Identification No.: 13036 BY: John M. Willis Identification No.: 71857 1700 Market street suite 3000 Philadelphia, PA 19103 (215) 246-2100 Attorney for Defendant Denro, Inc. CHRISTIAN HOKE and BETH HOKE, husband & wife COURT OF COMMON PLEAS CUMBERLAND COUNTY . . CIVIL ACTION v. . . JURY TRIAL DEMANDED No. 95-1776 DENRO, INC. AMENDED ANSWER WITH NEW MATTER OF DEFENDANT DENRO, INC. AND NEW MATTER PURSUANT TO Pa.R.C.P. 2255(41 Defendant, Denro, Inc. ("Denro", "Answering Defendant") by and through its attorneys, McKissock & Hoffman, P.C., hereby asserts the following Answer and New Matter to the allegations in plaintiffs' Complaint as follows: 1. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny this allegation. 2. Admi tted. 3. Denied as stated. By way of further response, answering defendant states that while it has conducted business in the Commonwealth of Pennsylvania, since the allegations of this paragraph do not define what is meant by "all times relevant hereto" and "regularly conducted business", no further response can be given and therefore these allegations are denied as stated. 4. Admitted in part. Denied in part. It is admitted that answering defendant is in the business of designing, developing, testing, manufacturing packaging for shipment, selling, distributing, supplying, marketing, advertising and installing telecommunication switching systems. The allegations relating to preparing, labeling and clinically researching telecommunication switching systems and their individual components are so vague as to their meaning that no response can be given and therefore those allegations are denied as stated. By way of further response, answering defendant states that the telecommunication switching system which is the subject matter of this case was designed and manufactured in accordance with government specifications. 5. Admitted in part. Denied in part. Admitted in part. Denied in part. It is admitted that answering defendant is in the business of designing, developing, testing, manufacturing packaging for shipment, selling, distributing, supplying, marketing, advertising and installing telecommunication switching systems. It is further admitted that the Integrated communication switching System referred to in this paragraph was located in the control tower of Capital city Airport in New Cumberland, Pennsylvania on April 8, 1993. The allegations relating to preparing, labeling and clinically researching telecommunication switching systems and their individual components are so vague as to their meaning that no response can be given and therefore those allegations are denied 2 as stated. By way of further response, answering defendant states that the telecommunication switching system which is the subject matter of this case was designed and manufactured in accordance with government specifications. 6. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly denies same. 7. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly denies same. WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant's favor and dismiss plaintiffs' Complaint with prejudice. COUNT I - NEGLIGENCE christian Hoke v. Denro, Ino. 8. Answering defendant hereby incorporates by reference, as though fully set forth at length, its responses to paragraphs 1 through 7 above. 9. (a) - (h) Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, answering defendant states the telecollllllunioation switching system which is the subject matter of this litigation was 3 designed and manufactured in accordance with government specifications. 10. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 11. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 12. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and they are therefore denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 13. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefo:,e they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 4 WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant's favor and dismiss plaintiffs' Complaint with prejudice. COUNT II - STRICT LIABILITY Christian Hoke v. Denro, Inc. 14. Answering defendant hereby incorporates by reference, as though fully set forth at length, its responses to paragraphs 1 through 13 above. 15. Admitted. 16. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleadIng is required and therefore they are denied. By way of further response, answering defendant specifically denies that the ICSS Telecommunications Console and System designed and manufactured by Denro was defective and/or was unreasonably dangerous and/or posed a hazard or danger to the plaintiffs. 17. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 18. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, answering defendant specifically denies that it is strictly liable to plaintiffs and states that the ICSS Telecommunication switching 5 system was designed and manufactured in accordance with government specifications. 19. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 20. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 21. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 22. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 6 WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant t s favor and dismiss plaintiffs' Complaint with prejudice. COUNT III - MISREPRESENTATION Christian Hoke v. Denro, Inc. 23. Answering defendant hereby incorporates by reference, as though fully set forth at length, its responses to paragraphs 1 through 22 above. 24. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 25. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, answering defendant denies that it is strictly liable to plaintiffs and states that the ICSS Telecommunication switching system was designed and manufactured in accordance with government specifications. 26. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 7 27. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 28. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 29. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant's favor and dismiss plaintiffs' complaint with prejudice. 8 COUNT IV - BREACH OF WARRANTY Christian Hoke v. Denro, Inc. 30. Answering defendant hereby incorporates by reference, as though fully set forth at length, its responses to paragraphs 1 through 29 above. 31. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. 32. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, answering defendant states that the product which is the subject matter of this litigation was in proper working order and/or was otherwise of merchantable quality and fit for its ordinary purpose and/or intended use at the time it was sold. 33. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 34. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge 9 or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 35. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. 36. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant I s favor and dismiss plaintiffs' Complaint with prejudice. COUNT V Beth Hoke v. Denro, Inc. 37. Answering defendant hereby incorporates by reference, as though fully set forth at length, its responses to paragraphs 1 through 36 above. 38. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to admit 10 or deny the allegations of this paragraph and accordingly deny same. 39. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and therefore they are denied. By way of further response, after reasonable investigation, answering defendant is without knowledge or information sufficient to admit or deny the allegations of this paragraph and accordingly deny same. WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant's favor and dismiss plaintiffs' complaint with prejudice. NEW MATTER 40. plaintiffs' Complaint fails to state a claim for which relief may be granted. 41. Plaintiffs' claims are barred by the applicable statue of limitations. 42. Answering defendant cannot be held liable to plaintiffs since, as a government contractor, it designed and manufactured the product which is the subject matter of this litigation in accordance with government specifications. 43. plaintiff's own negligence was the sole cause of his alleged injuries and therefore this action is barred. 44. Plaintiff voluntarily and knowingly assume the risk of his injuries and therefore this action is barred. 11 45. plaintiff's negligence was the proximate cause of his alleged injuries, the existence of any such injuries being denied, and plaintiffs' claims against answering defendant are limited or barred by plaintiff's comparative and/or contributory negligent. 46. No action or inaction on the part of answering defendant constitutes the proximate cause and/or legal cause of the injuries alleged in plaintiffs' Complaint, the existence of such injuries being denied. 47. If the plaintiff I s injuries are as alleged, such injuries being specifically denied, then such injuries were caused by the act and/or omissions of persons or entities other than the answering defendant over whom answering defendant has no control and over whom answering defendant is no way responsible. 48. If the plaintiff was injured by any product manufactured and/or sold by answering defendant, which is denied, then the product was used for a purpose and in a manner not intended by its manufacturer. 49. If plaintiff was injured by any product manufactured and/or sold by answering defendant, which is denied, then such injury resulted from a misuse of the product for which answering defendant cannot be held liable. 50. If plaintiff was injured by a product manufactured and/or sold by answering defendant, which is denied, then such product has been so materially modified or substantially changed that, at the time of the alleged injuries, the product no longer constituted a product of the answering defendant. 12 51. If plaintiff was injured by any product manufactured and/or sold by answering defendant, which is denied, then plaintiff's injuries were caused by the improper maintenance of the product and/or other causes which developed after the product left the control of answering defendant. 52. If plaintiff was injured by any product manufactured and/or sold by answering defendant, which is denied, then any such injuries were caused by a substantial deterioration of the product over an extended period of time so as to cause the product to no longer constitute a product of answering defendant. 53. If plaintiff was injured by any product manufactured and/or sold by answering defendant, which is denied, then said product met all applicable safety specifications, standards and regulations governing the design, manufacture and sale of the product. 54. If plaintiff was injured by any product manufactured and/or sold by answering defendant, it is averred that the product was manufactured according to the highest state of the art. 55. Any injuries and/or damages suffered by plaintiffs were caused by the superseding and/or intervening acts of plaintiffs and/or others, therefore barring any liability on the part of answering defendant. 56. Answering defendant did not extend and/or breach any warranties, either express or implied, to plaintiffs. 57. If plaintiff was injured by any product manufactured and/or sold by answering defendant, which is denied, then said 13 product met all governmental specifications, industry and trade standards relating to the design, manufacture and sale of product. 58. Any injuries and/or damages suffered by plaintiffs were caused solely as the result of and by a product manufactured and/or sold by entities other than answering defendant. WHEREFORE, defendant, Denro, Inc., respectfully requests that this Honorable Court enter judgment in defendant's favor and dismiss plaintiffs' Complaint with prejudice. NEW MATTER PURSUANT TO Pa.R.C.P. 2252(4) 59. Answering defendant denies any and all liability to the plaintiffs, but avers that if the plaintiffs are entitled to recover based on the allegations of their Complaint or proof in support thereof, that any such rightful recovery is due to and based solely upon the acts or omissions of defendants American Telephone and Telegraph Company, Plantronics Santa cruz, Audio Professional Hearing Aid Center and Paul R. Knaub, against whom answering defendant asserts its right to contribution and/or indemnity for such damages for which answering defendant may be determined to be liable to plaintiffs. WHEREFORE, answering defendant Denro, Inc. demands that plaintiffs' Complaint be dismissed, and that judgment be entered in favor of defendant Denro, Inc. and against the plaintiffs, together with costs and disbursements. Alternatively, if defendant Denro, Inc. is found liable to plaintiffs, defendant Denro, Inc. requests that the aforementioned cO-defendants, American Telephone and 14 " VERIPICATION I, JOHH K. WILLIS, ESQUIRE, verify that the statements made in the foregoing AMENDED ANSWER WITH NEW MATTER are true and correct to the best of my knowledge, information and belief. This verification is made subject to the penalties of 18 Pa. C.S.A. 54904 relating to unsworn falsification to authorities. (]bu~ JOHN K. WILLIS, ESQUIRE DATED: 0Ju: Z( /'f~' RBI Hoke v. Denro CERTIFICATE OF SERVICE I, JOHN M. WILLIS, ESQUIRE, hereby certify that a true and correct copy of the AHENDED ANSWER WITH NEW MATTER was served on counsel listed below by United states Mail, first class, postage prepaid on June zt , 1996. Andrew E. Dipiero, Jr., Esquire RUTTER , DiPIERO suite 750 The curtis Center 601 Walnut Street Philadelphia, PA 19106-3307 Karen S. coates, Esquire THOMAS, THOMAS , RAPER 305 North ~ront street, 6th ~loor P.O. Box 999 Harrisburg, PA 17108 Jayson wolfqang, Esquire METTE, EVANS , WOODSIDE 3401 North ~ront street P.O. Box 5950 Harrisburq, PA 17110-0950 Evelyn Reichman, Esquire KELLY, McLAUGHLIN , ~OSTBR 1700 Atlantic Bldq. 260 South Broad Street Philadelphia, PA 19102-5092 ~ John M. willis Attorney for Defendant Denro, Inc. I~ ~ ~ ~ ~ ~ ,VI (" - ~ ~~ i ~- ~ f <i ...J I.J '{:f ~ "< ~ ''-. K ""<. ~ "s'=J ...... " ~ \.J - . . KELLY, McLAUGHLIN & FOSTER By: THOMAS P. BRACAGLIA, ESQUIRE I.D. No. 32330 1700 Atlantic Building 260 South Broad Street Philadelphia, PA 19102 Attorney for Defendant AT&T Corp., incorrectly identified as American Telephone and Telegraph Company CHRISTIAN HOKE and BETH HOKE, h/w Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION v. : : JURY TRIAL DEMANDED AMERICAN TELEPHONE AND TELEGRAPH COMPANY, et al NO. 95-1776 ANSWER OF DEFENDANT, AT&T CORP., TO NEW MATTER PURSUANT TO PA. R.C.P. 22S2(d) OF DEFENDANTS, AUDIO PROFESSIONAL HEARING AID CENTER AND PAUL R. KNAUB Defendant, AT&T Corp. (hereinafter "Answering Defendant"), by and through its attorneys, Kelly, McLaughlin & Foster, hereby answers the New Matter Pursuant to Pa. R.C.P. 2252(d) of Defendants, Audio Professional Hearing Aid Center and Paul R. Knaub, as follows: 60. Answering Defendant hereby incorporates its Answers to Plaintiffs' Complaint as if the same were fully set forth herein at length. 61. Denied. Answering Defendant denies all allegations advanced. To the contrary, it is denied that any conduct or omission of Answering Defendant caused or contributed to any injury of Plaintiffs. By way of further answer, Answering Defendant denies any liability whatsoever to Plaintiffs and any liability directly, jointly and/or severally and/or in any other manner to Defendants, Audio Professional Hearing Aid Center and Paul R. Knaub, for contribution and/or indemnity. BJ492.1 WHEREPORE, Defendant, AT&T Corp., demands judgment in its favor and against Plaintiffs, Christian Hoke and Beth Hoke, and against Defendants, Audio Professional Hearing Aid Center and Paul R. Knaub, together with attorney fees and costs of suit. Respectfully submitted, Datedl 7/;r!?t I KELLY, McLAUGHLIN & FOSTER ~~ TIIOMA' P. BRACA I.,. PRANK S. NOFER Attorneys for Defendant AT&T Corp. 83492.1 , -. ,>, C) ;- C - .- .:r " '- .' ') ,~ co.. ..;:I : :-~ 'lJ-'.' U" ; ~:, -. ' ':..1; po"~ (~- ~r 1';-2 .:.0 :/1 c. ,--;' ...... , - ~";; _J -cU u:" -' l-I:. :2 J..:1. . ....- lI. .....'") ::j (.) '-J' U Kelly, McLaughlin & Foster BYI Thomas P. Bracaglia, Esquire X.D. No. 32330 1700 Atlantic Building 260 South Broad Street philadelphia, PA 19102 Attorney for Defendant AT&T Corp., incorrectly identified as American Telephone and Telegraph Company CHRXSTXAN HOKE and BETH HOKE, h/w Plaintiffs : COURT OF COMMON PLEAS CUMBERLAND COUNTY CXVIL ACTXON v. . . AMERICAN TELEPHONE AND TELEGRAPH COMPANY, et al JURY TRXAL DEMANDED : NO. 95-1776 REPLY OF DEFENDANT, AT&T CORP., TO NEW MATTER PURSUANT TO PA. R.C.P. 22S2(d) OF DEFENDANT. PLANTRONICS SANTA CRUZ Defendant, AT&T Corp. (hereinafter "Answering Defendant"). by and through its attorneys. Kelly, McLaughlin & Foster, hereby answers the New Matter Pursuant to Pa. R.C.P. 2252(d) of Defendant, Plantronics Santa Cruz, as follows: 113. Answering Defendant hereby incorporates its Answers to Plaintiffs' Complaint as if the same were fully set forth herein at length. 114. Denied. Answering Defendant denies all allegations advanced. It is denied that Answering Defendant is liable to Plaintiffs in any manner whatsoever. By way of further answer, it is denied that Answering Defendant is liable to Defendant, Plantronics Santa Cruz, and/or any other Defendant whether jointly, severally, for contribution and/or indemnity and/or in any other manner whatsoever. To the extent that the allegations of paragraph 114 are directed to another party, after 8l948.1 V E R I F I CAT I 0 N Frank S. Nofer, Esquire, hereby verifies that he is the attorney for Defendant, AT&T Corp. in this matter and that the facts set forth in the foregoing Reply to New Matter are true and correct to the best of his knowledge, information and belief. The undersigned understands that the foregoing statements are made subject to the penalties of 18 Pa. C.S.A. 54904 relating to unsworn falsification to authorities. ~~~~ PIWllt .. uop..- 83948,1 Kelly, McLaughlin & Foster By: Thomas P. Bracaglia, Esquire I.D. No. 32330 1700 Atlantic Building 260 South Broad Street Philadelphia, PA 19102 Attorney for Defendant AT&T Corp., incorrectly identified as American Telephone and Telegraph Company CHRISTIAN HOKE and BETH HOKE, h/w Plaintiffs COURT OF COMMON PLEAS I CUMBERLAND COUNTY : CJ:VIL ACTION I I JURY TRIAL DEMANDED v. AMERJ:CAN TELEPHONE AND TELEGRAPH COMPANY, et al : NO. 95-1776 CERTIFICATE OF SERVICE Frank S. Nofer, Esquire, hereby certifies that he has this date served a true and correct copy of the foregoing pleading via United States mail, first class, postage prepaid, upon counsel listed below: Andrew E. DiPiero, Jr., Esquire THOMAS B. RUTTER, P.C. The Curtis Center, Suite 750 601 Walnut Street Philadelphia, PA 19106-3307 Karen S. Coates, Esquire THOMAS, THOMAS & HAFER 305 North Front Street Sixth Floor P.O.Box 999 Harrisburg, PA 17108 John M. Willis, Esquire McKISSOCK & HOFFMAN 1700 Market Street Philadelphia, PA 19103-3930 Jayson Wolfgang, Esquire METTE, EVANS & WOODSJ:DE 3401 North Front Street Harrisburg, PA 17110 ~~~ FRANK S. NOFER Dated: Julv 22. 1996 83948.1 ..... 0- rl; l>~ , i.:: .. .~~ , , <.~ ) ::.-~ UJ,:' -- :~,l:~~ l-l!{' ..... c_ ~~j U-i'_ --- ~c . .., (;) ''/' "J ,. " .....,. ~";' ,",(U u;. , ;t~ ; !a.. .'. 1,,- ~. lL ,n ":""_) U <;, :J .. . RUTTBR 5 DiPIBRO By: Andrew E. DiPiero. Jr., Esquire Attorney I.D. No. 3467l The Curtis Center, Suite 750 601 Walnut Street Philadelphia, PA 19106 Attorney for Plaintiff. (215)925-9200 CHRISTIAN HOKE and BETH HOKE, husband and wife 627 Roosevelt Avenue York, PA 17404 . . COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION No. 95-1776 I . . . . v. : I : DENRO, INC. 9318 Gaither Road Gaithersburg, MD 20877 . . . . . . JURY TRIAL DBMAHDBD PLAINTIFFS' REPLY TO THB AMENDBD NEW MATTBR OF DBFBNDANT DBNRO. INC. 40. through 42. Denied. The allegations contained in paragraphs 40 through 42 are conclusions of law to which no further reply is required at this time. 43. Denied. It is specifically denied that the Plaintiff was negligent in any manner. Moreover, the allegations contained in paragraph 43 are conclusions of law to which no response is required at this time. 44. Denied. It is specifically denied that the Plaintiff voluntarily and knowingly assumed any risk of injuries. To the contrary, at all times material hereto the Plaintiff acted in a reasonable manner. Moreover, the allegations contained in paragraph 44 are conclusions of law to which no further reply is required at this time. 45. Denied. It is specifically denied that the Plaintiff was negligent in any manner. Moreover, the allegations contained in ~ VERIFICATION I verify that the statements in this Pleading are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. S4904 relating to unsworn falsification to authorities. o- n' .0' il, L~ " .' . ~ ~-:; W' ('"":I -:*/ ell" .,'. ,)..~ ~'. ft. ,~ ~:;3 c.' o~. ',", , ., (,' (~... ~ w' c...: ;;'1 r-J.., . ' 0- . , ~ t.1 '"- ' ,0- r :;:'} . ....; I' \,0 '-:5 u """ oJ , , McKISSOCK & HOFFMAN, P.C. BY: John M. Willis Identification No.: 71857 1700 Market street suite 3000 Philadelphia, PA 19103 (215) 246-2100 Attorney for Defendant Denro, Inc. CHRISTIAN HOKE and BETH HOKE, husband & wife : COURT OF COMMON PLEAS CUMBERLAND COUNTY v. . . CIVIL ACTION - LAW . . PLANTRONICS SANTA CRUZ and AUDIO PROFESSION^L HEARING AID CENTER and PAUL R. KNAUB JURY TRIAL DEMANDED No. 93-3455 CIVIL, 1993 . . . . CHRISTIAN HOKE and COURT OF COMMON PLEAS BETH HOKE, husband and wife . CUMBERLAND COUNTY . . . v. . CIVIL ACTION - LAW . AMERICAN TELEPHONE AND JURY TRIAL DEMANDED TELEGRAPH COMPANY . . . No. 95-1761 - CIVIL TERM . CHRISTIAN HOKE and . COURT OF COMMON PLEAS . BETH HOKE, husband and wife CUMBERLAND COUNTY v. CIVIL ACTION - LAW . . DENRO, INC. : JURY TRIAL DEMANDED : ~ No. 95-1776 - CIVIL TERM REPLY OF DEFENDANT DENRO, INC. TO NEW HATTER PURSUANT TO Pa.R.C.P. 2252(41 OF DEFENDANT PLANTRONICS SANTA CRUZ Defendant Denro, Inc., by and through its attorneys, McKissock & Hoffman, P.C., hereby files this Reply to the New Matter pursuant to Pa.R.C.P. 2252(d) of defendant Plantronics Santa Cruz as follows: ~ Andrew E. DiPiero, Jr., Esquire RUTTER & DiPIERO Suite 750 The Curtis Center 601 Walnut Street Philadelphia, PA 19106-3307 Jayson Wolfgang, Esquire METrE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Karen S. Coates, Esquire THOMAS, THOMAS & HAFER 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108 Thomas P. Bracaglia KELLY, McLAUGHLIN & FOSTER 1700 Atlantic Building 260 South Broad Street Philadelphia, PA 19102-5092 Kindly withdraw my appearance on behalf of the Plaintiffs in the above captioned matter. LAW OFFICES OF RUTrER & DiPIERO B~fQf.L? drew E. DiPiero, J ENTRY OF APPEARANCE Kindly enter my appearance of behalf of the Plaintiffs in the above .:aptioned matter. BY: Dated: 10 ~/~.n \'D "II~"ilUIO'X\lIuy"'''''''.4oc fF. Lf) -- .::I I':; .,. "i.~ t .. - '"-,,, - -,"!~ C,' ::: ',.'C i:- ..;: .~~ "- c o.D l'V) ~~. 1:.2 ,'~ ft\.!- -' ',ii'il -- :::> no... i=- -, ::~ ~ r- ::1 0'\ V , f .. ....... CHRISTIAN HOKE and BETH HOKE, husband and wife, Plaintiffs . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . v. CIVIL ACTION - LAW PLANTRONICS SANTA CRUZ, AUDIO PROFESSIONAL HEARING AID CENTER, and PAUL R. KNAUB, Defendants NO. 93-3455 CIVIL TERM * * * * . IN THE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, PENNSYLVANIA : . CIVIL ACTION - LAW . . . : NO. 95-1761 CIVIL TERM * * * * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHRISTIAN HOKE and BETH HOKE, husband and wife, Plaintiffs v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Defendants CHRISTIAN HOKE and BETH HOKE, husband and wife, Plaintiffs v. CIVIL ACTION - LAW / DENRO, INC., Defendants 1171. NO. 95-~~&i CIVIL TERM AND NOW, this ORDER OF COURT Z. , 11. day of December, 1997, upon consideration of Plaintiffs' Motion To Compel Defendant Plantronics, Santa Cruz, to Return the Communication Headset and All Related Documents to Plaintiff, a Rule is issued upon the Defendants to show cause why the relief requested should not be granted. 2. Plaintiffs' Complaint alleges that on April 8, 1993, Plaintiff Christian Hoke, then twenty-nine (29) years of age, was engaged in his employment as an Air Traffic Control Specialist at the Capitol City Airport in New Cumberland, Pennsylvania. 3. While wearing a Starset I! headset, which was manufactured by Defendant Plantronics, Santa Cruz, a loud noise blasted through the communication system and into his right ear, causing him immediate sharp pain in the right ear and neck. 4. As a consequence thereof, he sustained an eighty percent (80%) hearing loss in the right ear as diagnosed by various physicians, including the flight surgeon for the Federal Aviation Administration. 5. As a further consequence of the above-mentioned hearing loss, Plaintiff Christian Hoke has been declared physically ineligible to be employed by the Federal Aviation Administration and his career as an Air Traffic Control Specialist has been terminated. 6. One of the theories of liability alleged by Plaintiffs against Defendant is that Plantronics should have equipped the headsets with a noise suppressor device that was of such quality that it would block out certain noise levels. 7. On February 19, 1997, this Court ordered the Plaintiff to provide the headset to Defendant Plantronics whose representatives requested same for the purpose of inspecting the headset as well as to perform non-destructive testing. (A copy of this Court's Order of February 19, 1997 is attached hereto as Exhibit "A".) 8. On May IS, 1997, upon the completion of Clyde A. Smith's deposition which was conducted in connection of this case, Counsel for the Plaintiff turned over possession of the headset and related equipment to Karen Coates, Esquire, Counsel for Defendant Plantronics. The headset with the cords attached was encased in its original plastic 2 . .... was incorporatcd with thc Plantronics headset, and which was manufactured and designed by Defendants Paul R. Knaub and Audio Professional Hearing Aid Center. While wearing the Starset II headset, an unusually loud noise blasted through the communications system and into his right ear, causing him immediate sharp pain in the right ear and neck. As a result of incident and sustaining the trauma of the unusually loud noise blasting through the communication system and the headset, he sustained an eighty percent (80%) permanent hearing loss in the right ear, as diagnosed by various physicians in the central Pennsylvania area, including the Flight Surgeon for the Federal Aviation Administration. Due to the hearing deficit that he sustained in the incident, which occurred on April 8, 1993, Mr. Hoke has been declared physically untit and ineligible to be employed by the Federal Aviation Administration and his employment as an Air Traffic Control Specialist has been terminated. II. LEGAL ARGUMENT Rule 4009.11 of the Pennsylvania Rules of Civil Procedure permits a party to request and inspect documents and things. In the instant case, the Defendant Plantronics tiled a motion requesting an Order for the Plaintiff to produce the headset and the undersigned counsel for Plaintiff opposed Defendant's Motion out of concern for the safety and integrity of the headset in question. As an altemative proposal, the undersigned requested an opportunity to have a representative on behalf of the Plaintiff deliver the headset and remain present during the testing process. However, the court granted the Defendant's Motion and ordered the Plaintiff to tum over the headset. Plaintitrs counsel fully complied with the court's order and turned the headset and related equipment over to Plantronic's attomey on May 15,1997. 2 . .... Subsequently, three (3) separate letters were sent to Plantronic's attomey requesting the return of the headset as well as the test results. As of this date, Plantronics has failed to return the headset and it has likewise failed to provide any information relating to the inspection and/or test results. This headset does not belong to Plantronics but was given to the Plaintiff from the Federal Aviation Administration. This headset is a critical piece of evidence in this case and the undersigned requests that it be retumed immediately. P1antronics has now had possession of the headset for seven (7) months and has had more then ample time to conduct an inspection and testing. WHEREFORE, based on all the foregoing reasons, Plaintiffs request that this court enter an Order in the form attached hereto compelling Plantronics to retum the headqet immediately to Plaintiffs' Counsel along with copies of any and all documents which were generated during the inspection and/or testing process. Plaintiffs further request that this court assess counsel fees against P1antronics and made payable to Plaintiffs' counsel in the amount of$350.00 for the time and effort that was devoted to requesting the retum of the headset and in connection with preparing and tiling this motion. ,. ~pectfully SUbmitte~d' ()JI.tt~EIML Andrew E. DiPiero, J Dated: 11." ~ .97 3 , '-.. CERTIFICATE OF SERVICE This is to certifY that a copy of the foregoing Motion to Compel Defendant Plantronics, Santa Cruz, to return the Communication Headset and all Related documents to Plaintiffs' Counsel has been served upon the following individuals by mailing copies of same via United States First Class Mail on -.A<... , 1> . 1997 addressed as follows: Karen S. Coates, Esquire Thomas, Thomas & Hafer 305 North Front Street, 6th FI. P.O. Box 999 Harrisburg, PA 17108 Frank Nofer, Esquire Kelly, McLaughlin & Foster 1700 Atlantic Building 260 South Broad Street Philadelphia, PA 19102-5092 John M. Willis, Esquire McKissack & Hoffinan 1700 Market Street, Suite 3000 Philadelphia, PA 19102 John Sparks, Jr., Esquire Post & Schell, P.C. 237 North Prince Street Lancaster, PA 17603 KOLSBY, GORDON, ROBIN SHORE & ROTHWEILER BY /t Andrew E. DiPiero, Jr Attorney for Plaintiff \\OtblI..\d"'iI',M.rblo\CCf1ilk.11 DrStn<~ IlIN7" ,.~ I ~ '. ',.. CHRISTIAN HOKE and . . BETH HOKE, husband . . and wife, . . Plaintiffs . . . . v. . . . . PLANTRONICS SANTA CRUZ, . . AUDIO PROFESSIONAL HEARING . . AID CENTER, PAUL R. KNAUB, . . AT&T CORP., and DENRO, INC. , . . Defendants . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 3455 Civil 1993 AND NOW, ORDER OF COURT this \, t~day of February, 1997, upon consideration of the Motion To Compel Production of Headset for Non-Destructive Testing by Defendant Plantronics, filed on behalf of Defendant Plantronics Santa Cruz, and of Plaintiffs' Answer to Defendant Plantronics Motion To Compel Prod~ction of Headset for Non- , Destructive Testing, Defendant's motion is GRANTED. BY THE COURT, ot J Wesley Oler, crr., J. i "Andrew E. DiPiero, Jr., Esq. , Suite 750 v The curtis Center 601 Walnut Street Philadelphia, PA 19106-3307 Attorney for Plaintiffs Thomas P. Bracaglia, Esq. Frank S. Nofer, Esq. 1700 Atlantic Building 260 South Broad Street Philadelphia, PA 19102-5092 Attorneys for Defendant AT&T Corp. , I c .. -- 1 2 3 4 5 6 7 8 9 10 11 12 ..... , 13 14 15 16 17 18 19 20 21 22 23 24 25 4 MR. DiPIERO: I would like the record to reflect that I provided Karen Coates, counsel for Plantronics, with the original headset at the completion of Mr. smith's deposition. The headset was encased in its original plastic case and includes the custom molded earpiece and the cords that were attached to the headset when Mr. Hoke was using it as an air traffic controller. That headset and the related equipment has been provided to her pursuant to Court order for the purpose of nondestructive testing. MS. COATES: I will acknowledge receipt, thank you. STIPULATION It is hereby stipulated by and between counsel for the respective parties that sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved to the time of the trial. KENNETH DAVID HARTENSTINE, called as a witness, being sworn, testified as follows: DIRECT EXAMINATION BY MR. DiPIERO: GEIGER I: LORIA REPORTING SERVICE. 1408 PARK OR. SUITE I. HIG., PA 11110 717"""1501 OR "800'222'4,77 I n . .. 4..' -... LAW OFFICES KOLSBY, GORDON. ROBIN, SHORE & ROTHWEILER ... PROPIU..IOHAL CORPORATION II.ROERT P. "'DUUY ALLAH H. OQRDON P. PIULIP ROBIN MITCllIlLLd.8HORJI: xaHNETII N. ROTHWBILBR ANDREW a. DI PIBAD,"'R. HADSEN A. BaZAR .rANES A.PRANCIS ONE LIBERTY PLACK DUND PLOOR IOftO HAHRET STRBET PIIIL.ADELPHIA, PA IGIOD lal8) 881.9100 TBLBCOPIBR UiIlD) 881.1>>101 OP COU)f..L THONAS D. RUTTBR July 8, 1997 Karen S. Coates, Esquire Thomas, Thomas & Hafer 305 North Front Street, 6th Floor P. O. Box 999 Harrisburg,PA 17108 RE: Hoke v. Plantronics, et aI. CCP-Cumberland County, No. 3455 Civil 1993 Dear M~. Coates: I am hereby requesting that you return the subject headset to me at the conclusion of Plantronics' testing. I am also requesting a complete copy of the test results. Thank you for your attention in this matter. Sincerely, ~f~/ ADP:tk cc: Other Counsel \"""IriI'4dlWellIM.\CDlCn1l97_ .t- LAW OFFICES KOLSBY, GORDON, ROBIN, SHORE B.: ROTHWEILER ... PROn...oHAL CORPORATION ALLUf n.OORDON p, PHILIP RODIN NITCIIELLd'. aHORB KENNItTH K. ROTHWEILER ANDREW B. DI puma. JR. "'ADEEM A. BE'ZAR "AHES A. PRANCIS ONB LlDERTY PLACK 811ND PLOOR IO~O MARKBT STRBBT PHILADBLPHIA, PA.IOIOD (Ulft) 8151.8100 'TELKCOPIB" (11I18) 881..0101 or COUN..L HERBERT P. KOLSOY THOKAS D. RUTTBR September 26, 1997 ." . -.. Karen S. Coates, Esquire Thomas, Thomas & Hafer 305 North Front Street, 6th Floor P. O. Box 999 Harrisburg, PA 17108 RE: Hoke v. P1antronics, et a1. CCP-Cumberland County, No. 3455 Civi11993 Dear Ms. Coates: I am hereby requesting that you return the subject headset to me along with the results of P1antronics' testing. I had requested this information several months ago, however, I received no response. I look forward to your prompt reply and thank you for your attention in this matter. Sincerely, ~~~D~r ADP:tk \\Ddolli,'.dcbhic\U"bClJ8ln 921197 doc '.- LAW OFFICES ICOLSBY, GORDON, ROBIN. SHORE &: ROTHWEILER Ai. rRopa...ONALCORPOR.\TIOH ALLAN t(.OORDON p, PHILIP RODIN MITCIlELL J. SHORB KENNETH M. ROTJlWE1LER ANDREW E.DIPIERaJR. HADEEM A. DEZAR JANES A. FR.\.NCIS ONE LIBIUtTY PLACE UUND PWOR 16"0 MAltKET 9TnS8T I'IIILADELI'IIIA. FA. IDIOO (I31et) OIU"O"oo TBLKCOPI.R (8121) IIOI-OlOI OPC:OI1HIKL JlERBERT 1'. KOLSDV THOKAS D. RUTTER October 29, 1997 Karen S. Coates, Esquire Thomas, Thomas & Hafer 305 North Front Street, 6th Floor P. O. Box 999 Harrisburg,PA 17108 RE: Hoke v. P1antronics, et ai, CCP-Cumberland County, No. 3455 CIvil 1993 Dear Ms. Coates: May I please have a status report on Plantronic's testing of the headset. Of course, if the testing has been completed, 1 am hereby requcsting that you return the headset along with a complete copy of the test results. I look forward to your reply. Thank you for your attention. ADP:tk ,'Odttl....r."ttJlahCllltIt lot....7 oIoK .. CHRISTIAN HOKE and BETH HOKE, husband and wife, Plaintiffs . . . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . v. . . CIVIL ACTION - LAW PLANTRONICS SANTA CRUZ, AUDIO PROFESSIONAL HEARING AID CENTER, and PAUL R. KNAUB, Defendants : : . . . . NO. 93-3455 CIVIL TERM * * * * CHRISTIAN HOKE and . IN THE COURT OF COMMON PLEAS OF . BETH HOKE, husband : CUMBERLAND COUNTY, PENNSYLVANIA and wife, : Plaintiffs . . : v. . CIVIL ACTION - LAW . . . AMERICAN TELEPHONE AND : TELEGRAPH COMPANY, . . Defendants . NO. 95-1761 CIVIL TERM . * * * * CHRISTIAN HOKE and . IN THE COURT OF COMMON PLEAS OF . BETH HOKE, husband . CUMBERLAND COUNTY, PENNSYLVANIA . and wife, . . Plaintiffs . . . . v. : CIVIL ACTION - LAW . . DENRO, INC. , . r71y . TERM ~ Defendants NO. 95-~ CIVIL AND NOW, this ORDER OF COURT 2 1 ~ day of January, 1998, upon relation of Plaintiffs' counsel that Plaintiffs' Motion To Compel Return of Communication Headset and Related Documents may be deemed moot, the Rule issued in response to the said motion is discharged and the motion is DEEMED MOOT. BY THE COURT, Andrew E. Dipiero, Jr., Esq. Suite 750 The Curtis Center 601 Walnut Street philadelphia, PA 19106-3307 Attorney for Plaintiffs Thomas P. Bracaglia, Esq. Frank S. Nofer, Esq. 1700 Atlantic Building 260 South Broad Street Philadelphia, PA 19102-5092 Attorneys for Defendant AT&T Corp. C"m..':" m......AJ J.. .3 o. 'I f I '-1-" Karen S. Coates, Esq. 305 North Front Street sixth Floor, P.O. Box 999 Harrisburg, PA 1710B Attorney for Defendant Plantronics Santa Cruz John R. Sparks, Jr., Esq. 237 North Prince Street Lancaster, PA 17603 Attorney for Defendants Audio Professional Hearing Aid Center and Paul Knaub John M. willis, Esq. 1700 Market Street Philadelphia, PA 19103-3930 Attorney for Defendant Denro, Inc. :rc CERTIPICATE OP SERVICE I, INGRID B. HOPKINSON, ESQUIRE, hereby certify that on this 22nd day of September, 1998 a true and correct copy of Defendant Denro, Inc.'s Praecipe to withdraw Motion for summary Judgment from Argument List has been served upon the following counsel via United states, First Class Mail: Robert N. Hann, Esq. Kolsby, Gordon, Robin, shore & Rothweiler One Liberty Place 1650 Market Street 22nd Floor Philadelphia, PA 19103 Karen S. coates, Esq. Thomas, Thomas & Hafer 305 North Front Street 6th Floor P.O. Box 999 Harrisburg, PA 17108 John R. Sparks, Jr., Esq. Post & Shell, P.C. 237 North Prince Street Lancaster, PA 17603 IN~li~ "'Bt~O~INSON