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Home My WebLink About95-05368 , I. , ....~80 \' rr)' ,,, ~...l--~ (.~_., . .~.C1) --- --- - JOHN p, ADAMS and SANDRA L, ADAMS, his wife, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA , , , , v, CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC" Defendant 95-5368 CIVIL TERM ORDER OF COURT AND NOW, this 14th day of June, 1996, argument having been held on the PlaintiffS' Motion to Compel Discovery and the Plaintiffs' Request to Set a Discovery Schedule, and counsel for the defendant having failed to appear, it is ordered and directed that a continued hearing in this matter be held on Thursday, August 1, 1996, at 2:30 p,m, Counsel shall appear unless both sides agree that further argument may be dispensed with, At said continued session the parties shall have the opportunity to argue the various objections interposed by the defendant to the plaintiffs' outstanding discovery and are requested to submit to the court their proposals concerning a schedule for future discovery in this case, Not less than 15 days prior to the date set for said continued argument the defendant shall furnish to counsel for the plaintiffS the following design drawings with respect to the transmission of the type used on the subject lift, to wit: 1, The gear shift leaver; 2. The direction selection lever, however it is designated by Clark, being the leaver which controls the direction of the vehicle; 3, The linkage between such levers and " .. hydrolic .y.tea and .ach and every component of the hydrolic .y.te. which control. backward and forward aotion of the vehicle or the .peed of backward or forward motion of the vehicle, Thi. .hall include all detent., port., and control mechani.a. for the flow of hydrolic fluid within the .yetem a. it relatea to direction and .peed, The word deaign drawing. aean. any drawing or blue print which i. u.ed by the defendant either in the de.ign of the product or a blue print which i. used a. part of the manufacturing proces. or is used to order parts from an outside .ource, a. long a. the parta are tho.e defined above, It ia directed that the defendants produce .aid de.ign drawinga unle.. they have within 15 day. of thi. date filed a aotion for protective order with re.pect to aaae, Plaintiff. will not for the purpo.e of thi. order divulge thia information outside of the litigation and will agree to the entry of a trade .eerets protective order, .hould that be reque.ted by defendant and i. otherwi.e appropriate, By the court, ,4.~ T.rry s, Hyman, E.quire For the plaintiff. {\~ ~tA ,,/I'l/lJlo'.L, ......-q--- ,,;..,. Walter H, swayze, III, Esquire For the Defendants :lkt ~; FlLED-GrFlCE or- 11 ': ! i )' \ '"I' 'CiTrn'f % JlJiI\l W \01 3\ CUlr. .:, ' i"'. .\'1' _P..II..'.'" .........;,. FEI~I\S'(t:-:i\\ll.\ . \ \ 1 1 1 .1 ! ; ,,' . ',~-' ." ;.,.._'..,.'....,-::~-'.'.~ ..".~.':"ii."'~..,- ,.",'",.. '" JOHN P. ADAMS and SANDRA L. ADAMS, hil wife, Plalntlffl IN THE COURT OF COMMON pLEAS OF CUMBERlAND COUNTY, PENNSYLVANIA VS, CIVIL ACfION . lAW 95-5368 CIVIL TERM cLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC., Defendant IN RE: DEFENDANT~ MOTION TO COMPEL ORDER AND NOW, thil 10' day of April, 1996, argument on the above captioned motion II let for Thursday, June 6,1996, at 1:30 p,m. in Courtroom Number 4, Cumberland County CourthoUle, Carlllle, PA. Terry S. Hyman, Esquire ' For the Plaintlffl ~ Walter H. Swayze, Ill, Esqulr~~~" AI> For Defendant Clark plU'"' William p, DouglBl, Esquire For Defendant Forklifts, Inc. :rlm BY THE COURT, hR<'/'~;~_!!!'-; .' '-',' , , ~ ~ 3' i' IV ..JlH "1;, 0- 0'" FllED-OFACE OF 11\'; r:on'C'~f)TNW Q~ - -.J :> ' - ~ ...Jq- ~ -.J Jl. JOHN P. ADAMS and his wife, SANDRA L. ADAMS, plaintiffs I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I CIVIL ACTION - LAW v, I I NO, 95-5368 CIVIL TERM I CLARK MATERIAL HANDLING COMPANY and FOlUtLIFTS, INC" Defendants , , I oaola AND NOW, this day of , 1996, upon consideration of Plaintiffs' Motion to Co.pel Discovery Responses and request for scheduling Conference to set Discovery Deadlines for Defendant Clark Material Handling Company, it is hereby ORDERED that said discovery responses will be provided within ten (10) days of the date of this Order and a schedule Conference is .et for the day of , 1996. BY THE COURTI J. JOHN P. ADAMS and hi. wife, SANDRA L. ADAMS, plaintiff. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA I I CIVIL ACTION - LAW : : NO, 95-5368 CIVIL TERM : : : v, CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC., Defendant. IO~IOI 10 CDK'.L DI.CO".' ...POI... lID .., DI.CO".' D8ADLI... ftJ. D...IIft.... Cr.Il.. 11I.'1'..1&1. WllllftLllla COIIIlUY AND NOW, cOile. the plaintiff. John p, Adall. and Sandra L, Ada.., hi. wife, by their attorneys, Angino , Rovner, P.C" and hereby move Your Honorable court will compel di.covery froll Defendant Clark Material Handling company ("Clark") for the following rea.on.: 1. On November 22, 1995, Plaintiff. .erved Interrovatorie. and Reque.t for Produotion of Docu.ent. upon the Defendant Clerk, 2. On December 28, 1995, the partie. agreed to an exchange of di.covery re.pon.e. by January 19, 1996, a. well a. a meeting to e.tablish di.covery deadlines and depo.ition date., (EXhibit "A") 3, Due to the .now storm and flooding at the law fira of Angina , Rovner, plaintiffs were unable to file their re.pon.e until February 16, 1996, " , On February 16, counsel then diecu..ed the nature and scope of discovery and agreed to hold a conference to aet up a discovery deadline, Plaintiff.' coun.el again reque.ted that written discovery be filed prollptly, The partie. agreed to re.olve I19S]IPJQ '--,. all i..u.. r.garding d.po.ition. and cont.ntion Int.rrogatori.. on March 1, 1996, Plaintiff.' coun..l was a.sur.d that writt.n Interrogatorie. would be forthcoming shortly, 5. During the fir.t w.ek of March, Plaintiff.' coun..l contact.d Def.n.. Coun..l by t.l.phon. l.aving a voic. lIaU ....ag., r.qu.sting a r.turn call, Mr, swayze did not r.turn the call, 6. On March 19, 1996, Plaintiff.' coun..l, by l.tt.r r.qu..t.d Clark's counsel answer the out.tanding Interrogatori.. and, at a lIinillulI, call plaintiff by March 25th to resolve the outatanding discov.ry i.su.a, Ui.., l.tt.r of March 19, 1996, attach.d h.r.to a. Exhibit "B".) 7, A. of April J, 1996, the date of this Motion, Mr. swayze ha. not contacted Plaintiff.' coun..l nor, ha. any an.wer. to Plaintiff'. di.covery, which i. now 4 .onth. old, b..n provid.d, 8, A. of this juncture, the discovery in thia ca.e ha. bs.n d.cidedly one-dded. plaintiffS have provided allll.dical recorda, the .ntire comp.n.ation fil., and p.raitted Def.ndant to inap.ct the aubj.ct vehicle with two exp.rt., Def.ndant haa al.o found ti.. to .ubpo.na ..veral inches of r.cord. froll the co-Def.ndant Forklifts, Inc" and Plaintiff'S .lIploy.r, D.fendant has not, however, produced a single docUII.nt, identifi.d a single witness nor even provided a single substantive fact in its Answer to the Complaint, 2 9, Defendant should also be co.pelled to produce that discovery which he has already promised, Further a fixed schedule requiring the parties to complete discovery by a designated deadline would have a salutary effect on getting this case moving, WHEREFORE, plaintiffs pray Your Honorable Court will grant their Motion to compel and Order Defendant Clark to produce responses to PlaintiffS' dis~overy within ten (10) days of the date of the Order, plaintiffS also pray Your Honorable court will set up a scheduling conference which will set specific deadlines for the balance of discovery, ANGINO . ROVNER, P,C, ~// / //a ,-- ~rry s. fI n, Esquire I.D. No.3 07 4503 North rront street Harrisburg PA 17110 (717) 238-6791 counsel for plaintiff DATED: l.\-'-\~~ 3 CERTIFICATE OF SERVICE AND NOW, this l4.~ day of April, 1996, I, pa.ela J, Gille.pie, an employee of Anqino' Rovner, p,C" do hereby certify that I have .erved a true and corr.ct copy of the MOTION TO COMPEL DISCOVERY RESPONSES AND SET DISCOVERY DEADLINES FOR DEFENDANT CLARK MATERIAL HANDLING COMPANY in the unit.d stat.. mail, po.taq. pr.paid at Harri.burq, p.nn.ylvania, addr....d a. follow.: Walter H, SwaYI., III, Esquir. MARSHALL, DENNEHEY, WARNER, COLEMAN , GOGGIN 1845 Walnut str..t Philadelphia PA 19103-4797 Attorney. for Defendant Clark Material Handlinq coapany william p, Douqla., E.quir. DOUGLAS, DOUGLAS . DOUGLAS P,O, Box 261 27 W.et Hiqh Street Carli.l. PA 17013-0261 Attorney. for Def.ndant Forklift., Ille, ~~~~__~ ('i~~n pam.la J, G 1 ~pie . 10111'1' "A" IOIIPlI M MELIU.O 1UlY I, tlY)\A.'1 DAVID L. Ll'TZ lQClIIIII. .. KOIIK ,IIMIU o. 11Mo\1IN C1111DJIlI M MIIIWlHMmt aICIlIIaD A,IIIDUlCK DAVID I, W1ltlUlU ANGINO & ROVNER, p, C. ~'Uoli c. ouo~ MICllllEl.l, ~AVITlKY JOIIII J. MAmu.A LI\"''tWlQ F, IUOtIE DAWN L /INlIIlIOI lTEPtllN ., PEDUIEN , 10UlMOII z.. KUVIKY IOIEI'M M. OOIIA , unWIN 1lIE BEST LAWYERS -IN- AMERICA IJCIIIIIll C. ANDINO t/EII.I,JOVJ<P December 28, 1995 Walter H, sway!e, III, Eequire Har.hall, Dennehey, Warner, coleman' Goggin 1145 Walnut street Philadelphia PA 19103-4797 Re: Adame v. Clark Haterial Handling and Forklift., Inc. Your File No. 03052-00127 Dealt' Petel Thi. i. to confirm that we have agreed to exchange di.covery re.poneee around January 19, 1996, I will try to have our re.pon.ee to your Interrogatories ready within that time frame. We have aleo agreed to echedule depoaitione of both a Clark corporate de.ignee and the Valk deeignea in March. Your propoaad date for the week of March 11th will not auit my current calendar, a. I expect to be in trial the following week, Perhapa aomewhere eround March 27th onward would be acceptable, as I cannot be .ure when my trial will be over, YoU indicated that Clark would bear the cost of bringing it. deaignee to Philadelphia or Harrisburg for the deposition, We will diacuee mattera further on January 15th, truly yours, S, Hyman TSH/mlm cc: William p, Douglas, Esquire a18'4/LU 6&03 NO~TH F~ONT ST~EET, HAR~16BU~O, PA 11"0"708 171712310871' FAX 171712310&110 10111'1' "I" ........ .-aLO ftUYI,1MWI DAYIII 1. LUl'& .... ..1UIIIIt .AtCA o.lIl\lIIWl NCllAIII A. .AIII..... DAYIII', WIIIlIIII AN GINO &: ROVNERI P. C. IlUOl,I c. OUOII MIOIAI\.I. IlAvm~Y LAWUIIlS.,I,uOlll DAWII1.IIHIl1IlOI .,.... L IIIlIIJIIl IllLIlMON Z. UlVIIY IOIIftIM. DOaIA UI1UlIII 111 BEST LAWYBS -11I- AmICA NCllAIII C. AIlOINO -'I,~ March ill, 111116 walt.r H. sway.., III, I.quir. Mar.h.ll, ~nnahay, W.rn.r, Col...n . Go;9in 1145 Walnut Itr..t Philad.lphia P1 19103-47117 Ral Ad... v. cl.rk M.t.rial H.ndlin9 and rorklift., Inc. Your rile No, 03052-00127 De.r P.t.1 I .. 9.ttin9 a little conc.rn.d about the ab..nc. of concr.t. r..pon... fro. you in thi. c..., w. h.V. had ..v.ral conv.r..tion. in which you a9r..d to 9.t b.ck to .. to r..olv. out.tandin9 i..u.. in the pl.adin9. .nd di.cov.ry, To dat., I h.v. not r.c.iv.d your r..pon... to our Interro;.tori.. which w.r. ori9inallY pro.i..d at the .nd of Janu.ry. W. fU.d our an.w.ra in the .iddl. of F.bru.ry, under.t.ndin9 your. would ba co.in9 back .hortly ther.aft.r, It a .onth l.t.r and I h.v. .till not r.c.iv.d th... Addition.lly, w. .9r..d to a t.l.phon. conf.r.nc. on March 1.t to ..t up d.po.ition., YoU al.o a9r..d to contact your cli.nt to obt.in th.ir con..nt to a Itipulation r.quirin9 you to an.w.r our cont.ntion Interro;.tori.. within a .p.cifi.d p.riod of ti.. followin9 our .xp.rt r.port. I c.ll.d you durin9 the fir.t w..k of March to follow up on th... ..tt.r.. I l.ft .y n... .nd .....9. on your voic. ..il. I h.V. .till not h..rd froa you. I h.v. r.c.iv.d tod.y y.t anoth.r r.qu..t for .n authori..tion fro. ar cli.nt for you to obt.in hi. ..dic.l r.cord., I do not appr.c .t. diacov.ry which floW. only in on. dir.ction. I will not provide .ny furth.r di.cov.ry until you cont.ct .. to r..olv. the outatandin9 i..u... rurther, I wUl fU. pr.U.in.ry Obj.ction. to your N.W Matt.r unl... you .i9n .n .ctual stipul.tion th.t I can fila with the court. Pl.... c.ll .. no l.t.r th.n M.rch 25th, If not, I will fila appropri.t. aotion. and Obj.ction. with the court which I will not 1S019/'JQ 4101 1l0llTH 'IIDNT ITII'IT, HAIIIIIIIUIIO, 'A 11110.110. . (111) IIM"I . ,All (111) .....10 , Walter H. sway.e, III, I.quire llareh 1', 11116 'ave a wlthdraw until they are .rvued or you provlde .lIb.tanee rather than proai.e. T8H/pjll eel WilU.. P. DoU91.., ~trulY your., ~;p4yaan Eaquira ~. f"7 t") ." i c, , ; .. 5....,. l.u( ~r " ( , r';J F' . . i~ 'j ~ . ~J.. .'. c..~' I . i:t f-' , ~ :i) I :: ~ L , , ( '1 I- I I,.. . .' '.() ..I L l. . '.J JOHN p, ADAMS, and Hi. wife, SANDRA L. ADAMS, plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW j NO, 9')- 53~8 (I'lJ-: C ",- (AAI'- v, , , , , CLARK MATERIAL HANDLING : COMPANY AND FOJU( LIFTS, INC, : Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT, If you wish to defend against the clai.. .et forth in the following page., you must take action within twenty (20) day. after this complaint and Notice are served, by entering a written appearance personally or by attorney and fUing in writing with the court your deren.e. or Objections to the claim. set forth against you, You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff, You may lose money or property or other rights important to you, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. court Administrator, 4th Fl. cumberland county Courthouse One Courthouse square carlisle, PA 17013 240-6200 NOTICIA Le han demandado a usted en 1a corte, si usted quiere defenderBB de estas demandas expuestas en las paginas siquientes, usted tiene viente (30) dias de plazo al partir de la fecha de la demanda Y la notlticacion, Usted debe presentar una aparienoia esorlta 0 en persona 0 por abogado Y arohivar en la oorte en forma esorita BUS defensas 0 sus objeotiones a laB demandae en contra de BU persona, Sea avlBado que si usted no Be defiende, la corte tomara medidaB Y puede entrar una orden oontra usted sin prevlo aviso 0 notifioaoion Y por cualquier queja 0 allvio que es pedldo en la petloion de demanda, usted pueds perder dinero 0 sus propledades 0 otros dsreohos lmportantes para usted, LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTA, SI NO TIENE ABODAGO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL BERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION BE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL, court Administrator, 4th Fl, cumberland county courthouse One courthouse square Carlisle, PI. 17013 240-6200 JOHN P. ADAMS, and Hi. Wife, SANDRA L. ADAMS, plaintiff. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW I NO, 1). 'j Sf/. S' ("/ t tKt_ V 1-1.,.,^-- I I . . v. : I I I : JURY TRIAL DEMANDED CLARIt MATERIAL HANDLING COMPANY AND FORKLIFTS, INC. Defendant. . . COMPlAINT 1. plaintiff. John P. and Sandra L, Ada.. are adult. r..iding in M.chanic.burg, cumb.rland county, p.nn.ylvania, 2. Defendant Clark Material Handling company i. a profit- .aking corporation .ngag.d in the unufacture, d..ign, dbtribution and .ale. of forklift truck. which r.gularly .ell. product. and otherwi.e conduct. bu.ine.. in cumb.rland county, p.nn.ylvania. 3. Def.ndant Forklift., Inc, i. a corporation .p.cialiling in the .ale, di.tribution .nd ..rvicing of Clark fork lift trucka who.. .ain of fie. ie locat.d at 3925 Trindl. Road, ca.p Hill, cuab.rland County, Penn.ylvania, 4. rork Lift., Inc. at all ti... relative to this ca.. wa. .n .uthori.ed d.al.r and .g.nt of D.fendant Clark M.terial Handling coapany, 5. On March 2, 19!14, plaintiff John Ada.. w.. engag.d in hi. noraal occupation a. .n ....mbly line work.r at V.lk Manufacturing loc.ted on carli.1. pik., cumb.rland county, p.nnaylvani., 6. As part of hi. job, Mr. Adams found a Clark forklift. model C500-B80. type LP, 7615)'" it neces.ary to u.. serial number 685- 00287950KOF, 10 number AU 1537 industrial truck '4410804, 7, At that time and place Mr, Adams used the 1if.t truck to place a large, heavy snowplow blade on a roller table, Mr, Adams then drove the forklift truck to an area acrosS from the table, got off of the truck and placed it in neutral, 8, After walking over to the work area at the roller table, a distance of approximately 20 feet, Mr, Adams turned around to see the driverless fork lift truck coming towards him in reverse. Having no time to avoid the oncoming vehicle, Mr, Adams got caught between the heavy counterweight on the rear of the Clark lift truck and the stationary roller table, fracturing his pelvis and severing his urethra. 9, As a direct result of his accident, Mr. Adams was rushed to Holy spirit Hospital where he was found to have a severely lacerated urethra and evulsion of the prostate, multiple fractures of the pelvis and pubic bones, and a hematoma of the pelvis. 10, As a direct result of his injuries, Mr, Adams underwent significant medical treatment, including surgical repair of his severed urethra, for which he incurred medical expenses and may well incur additional medical expenses in the future, 11. As a direct result of his injuries, Mr. Adams was unable to work for a period in excess of four months and has suffered a permanent diminution of his earning capacity, 2 12, As a direct result of his accident, Mr, Adams incurred medical bills in approaching $15,000 and wage losses in excess of $6,000, 13, As a direct result of his injuries, Mr, Adams has in the past suffered acute and disabling pain and will in the future, suffer pain, anxiety and suffering, 14, As a direct result of her husband's injuries, plaintiff Sandra L, Adams has suffered a loss of consortium, advice, society and comfort, COUNT I JOHN p, ADAMS AND SANDRA L, ADAMS V, CLARK MATERIAL HANDLING COMPANY STRICT LIABILITY 15, paragraphs 1 through 14 are incorporated herein by reference, 16, Defendant Clark Material Handling company is strictly liable to Plaintiff under 1402A of the Restatement of Torts (Second) for the damages alleged herein which were directly and proximally caused by the Clark forklift truck identified above, which was defective in: (a) malfunctioning in the absence of a reasonable secondary cause when it went into reverse without a driver present on the vehicle, (b) failing to have any opsrator presence controls on the forklift, 3 (c) constructing the forward/neutral/reverse shift lever, linkage and hydraulic control system without separate, distinot detents for forward, reverse and neutral, (d) construoting the shift lever, shift linkage and hydraulic control system in a suoh a manner that the operator could place the vehicle in what appeared to be the neutral position when the vehicle, in fact, was in reverse, (e) designing and constructing the shift lever, shift linkage and hydraulic control syotem which would allow the hydraulic control system in such a manner that the hydraulio oylinder could receive hydraulic fluid in the reverse position at a slow rate, reSUlting in a delayed movement of the vehiole in the reverse direction, (f) failing to provide a shift system whioh had distinot positions for forward, neutral, and reverse I (g) failing to provide a control system in which the shift lever, shift linkage or hydraulio control system could be held in the neutral positionl (h) failing to provide adequate warnings to appraise the operator that the vehiole could, or did have a tendenoy to, move in a reverse direotion after a period of delay and while the operator oou1d be off of the vehiole, (i) failing to provide aocurate instructions regarding 4 the need to adjullt the IIhift linkage, IIhift lever and/or the hydraulic control system to avoid delayed reverse movement of the lift truck without a rider present I (j) failing to provide adequate operator instructions regarding the placement of the shift lever in the neutral or reverse position and the consequence of failing to do so accurately I (k) designing the system such that there wall or could be too much free play in the neutra1-reverlle positionsl (1) utilizing an emerqency brake system which could and did regularly come out of adjustment or could be maladjusted by an individual operator, rather than utilizinq a fixed system I (m) failinq to utilize and incorporate an automatic parking brake on to the vehicle or on to the vehicle'lI pedalsl (n) otherwise failinq to make the vehicle safe for its intended purpose, WHEREFORE, Plaintiff prays for judgment against Defendant in an amount in excess of Twenty Five Thousand ($25,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II JOHN p, ADAMS AND SANDRA L, ADAMS V, FORKLIFTS, INC, STRICT LIABILITY AND NEGLIGENCE 17, Paragraphs 1 through 16 and Count I are incorporated by 5 reference, 18, Defendant Forklifts, Inc, as the seller of the fork lift involved in the incident is strictly liable under 402A of the Restatement of Torts for the defects alleged in paragraph 16 above and incorporated herein by reference, 19, Defendant Forklifts, Inc., by contract, regularly conducted planned maintenance as wsll as repairs of the subject forklift, 20, Defendant Fork Lifts, Inc, is liable to plaintiff for its negligence in: (a) failing to inspect and detect excess free play and maladjustments in the forward/neutral/reverse shift lever, shift linkage and/or hydraulic control system of the subject lift truck, (b) failing to properly adjust the free play in the neutral reverse positions of the shift lever, linkage and hydraulic control system, (c) failing to alert, instruct or warn plaintiff'S employer or Plaintiff John Adams of the need to take precautions with the placement of the vehicle's shift mechanism in neutral or reverse, (d) failing to properly adjust the emergency/parking brake on the vehicle, (e) failing to alert, advise, instruct or warn 6 reference, 18, Defendant Forklifts, Inc, as the seller of the fork lift involved in the incident is strictly liable under 402A of the Restatement of Torts for the defects alleged in paragraph 16 above and incorporated herein by reference, 19. Defendant Forklifts, Ino" by contract, regularly conducted planned maintenance as well ae repairs of the subject forklift, 20, Defendant Fork Lifts, Inc, is liable to Plaintiff for its negligence in: (a) failing to inspect and detect exce.. free play and maladjustments in the forward/neutral/reverse shift lever, shift linkage and/or hydraulic control syste. of the subject lift truck, (b) failing to properly adjust the free play in the neutral reverse poaitions of the shift lever, linkage and hydraulic control .ystem, (c) failing to alert, instruct or warn plaintiff's employer or Plaintiff John Adams of the need to take precautions with the placement of the vehicle's shift mechanism in neutral or revers., (d) failing to properly adjust the emergency/parking brake on the vehicle, (e) failing to alert, advise, instruct or warn 6 . .'\..... ;-~ '-'-"'--_:'."',,","""''+,~,,~~,;~,~,' Plaintiff'. employer or Plaintiff of the danger that delayed rever.e movement could occur when no operator was in the vehicle/ (f) failing to inspect or adjust the fork lift so a8 to prevent it from enga9in9 in the reverse position while an operator was not present in the seat/ 21, Defendant i. also liable under the Doctrine of Res Ipsa Loquitur as Defendant Forklifts had exclusive control over the .aintenance and adjustments of the subject forklift shift .echanism, and the vehicle could only 90 into reverse without a rider present if Defendant had been ne91igent in it. maintenance of the fork lift truck, WHEREFORE, Plaintiff pray. for judgment against Defendant in an amount in exce.s of Twenty Five Thousand ($25,000) Dollar., exclusive of intere.t and costs, and in excess of any juriSdictional amount requiring co.pulsory arbitration, ANGINO , ROVNER, P,C, yaan, Esqu re . No, 36807 450 ,Front street Harrisburg, PA 17110 (717) 238-6791 Counsel for Plaintiff 7 YERIFICATION 1, JOHN p, ADAMS, do hereby swear and affirm that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief, 1 understand that this verification i. made subject to the penalties of 18 Pa,C,S, I 4904, relating to unsworn falsification to authorities, WITNESS: ri-vt p ~~ ,~ JOHN p, ADAMS , / -111~1 m~'/J.~f2 Dated: If> /tI/9S lUt1' ......' ,. ~ ,.., - ~' ': .'-"t = . -- \ . ,:.- ,.. . V') rl' "':--l-r'l ;z ". ~ J ~ ~ N ~ N1 = P ~ '" ....s 0- '- .yo ..... = ~ " f) ~ ~ "- ~ '.I C)~ ~ DOUGLo\S. DOUGLAS . DOUGLAS 27 W. HIGH ST, 'OB 261 Co\RLISLE PO\ 170n TIlLIl'HONIl 717,243,1790 JOHN p, ADAMS and SANDRA L, ADAMS, PLAINTIFF \S CLARK MATERIAL HANDLING CO. and FORKLIFTS. INC" ~ To: Lawrence E. Welker, Prothonotary x WILLIAM I', OOUOLAS. BSQ, SUl'"'me Cuurt 1.0,' 37926 OEOROE P. OOUOLAS, U1. BSQ, SUl'"'me Court I,D,' 61816 IN THE COURT OF CCM.4ON P-EASOF CWSEFUNOCOUNTY ~VLVANIA 1995 - ~168 CIVIL TERM CIVIL ACTION LAW EBAWfE Please enter an appearance on behalf of the defendant, Forklifts. lnc, Date: October 23, 1995 ~~~ Attorney for theOefendant, Forklifta. lnc, ~6~ r f\ In 1..11 1,,'\ \\'l'! 1,1 I !i ,., CI-1~n' IIlI ~ i 'j" _l'. It' \, \1,:1\ I' 1'111'11'11 i1l\1I ,.,1 III Iii 1.1 I II Ii" i ".011111:' Ull1lllY 01 ,.'111'1''1 ,-I (IIII' 1\"1\1'1:, ..11'1 'I! I. I ,,, ,. II:;, ,'1111'1' l'IIHlld(11 111.111" HI', '.11 Ui\ 1'.111111 III I, ,,111,',11(1 " ,:;h""i ff (Tf lll?pllt~' !lhm'j 1 t u I ! iJj'111111 illl\1 llltlld:':-,,, P"llll' ':.lVil\il.~l., VJIlO hf:..'inq ,July ",~'HH'il i\t'('lll'<Ilnq ,,' 1,\\". 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IN THI COURT or COMMON pr,IAS or CUMBIRr.AND COUNTY. PBNNSyr,VANIA JOHN P. ADAMS and His Wife, SANDRA L. ADAMS CIVIL ACTION - LAW vs. No. 95-5368 Civil Term CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. ENTRY OF APPEARANCE JURY TRIAL DEMANDED TO THE PROTHONOTARY: Kindly enter the appearance of Louis Bell, Esquire, and Walter H. Swayze, III, Esquire, on behalf of defendant, Clark Material Handling Company, in the above-captioned matter. WARNER, BY: OUIS B Attorney I.D. No. 19429 WALTER H, SWAYZE, III Attorney I.D. No. 59101 Attorneys for Defendant, Clark Material Handling Company 1845 Walnut Street philadelphia, PA 19103 (215) 575-2600 . ..... IN THE COURT OF CONNON PLUS or CUMBERLAND COUNTY, PENNSYLVANIA JOHN P. ADAMS and His Wife, SANDRA L. ADAMS CIVIL ACTION - LAW vs. No, 95-5368 Civil Term CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. CERTIFICATION OF SERVICE I hereby certify that I have served a true and correct C0Py of our Entry of Appearance on behalf of Clark Material Handling Company to counsel on this date as listed below. Terry S. Hyman, Esquire 4503 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs william P. Douglas, Esquire DOUGLAS, DOUGLAS & DOUGLAS 27 West High Street P. O. Box 261 Carlisle, PA 17013-0261 Attorney for Defendant. Forklifts, Inc. WARNER, - BYl DATEl November 3, 1995 *' .. ......... a! I" ;::~~ ",,:' :.~ l.;...- .'..r:!' it; ,,~.. U.:.. ',):, ct'r,. , ,:.:: OIl/) 1::11,.. I r dr. ~~:'e .1 ,1oi1iJ ~. X~ .;.> .~~ :oc: "'- ..... \fl ."., ., ... C3 :.c . " . WILLIAM P. OOUGLAS, ESQUIRE ATl'Y. 1.0. II 37926 OOUGLAS, OOUGLAS IE OOUGLAS 27 WEST HIGH STREET P.O. BOX 261 CARLISLE, PA. 17013 717-243-1790 ATl'ORNEY FOR DEFENDANT, FORKLlFl'S, INC. JOHN p, ADAMS, and his : Wife, SANDRA L, ADAMS: V. CLARK MATERIAL HANDLING COMPANY and FORKLlFl'S,INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PBNNSYLV ANIA CIVIL ACTION - LAW NO. 95-5368 CIVIL TERM JURY TRIAL DEMANDED j\NSWER WITH NEW MATIER 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied as stated.The Defendant, Forklifts, Inc., hereinafter called "Forklifts," Is a franchised dealership for Clark Equipment. 5. Admitted. 6. Admitted. 7. Denied. After reasonable Investigation, Forklifts Is unable to determine the veracity of the statements, and proof thereof Is demanded, 8. Denied, After reasonable Investigation, Forklifts is unable to determine the veracity of the statements, and proof thereof Is demanded. 9. Denied, After reasonable Investigation, Forklifts Is unable to determine the veracity of the statements, and proof thereof Is demanded. 10. Denied. After reasonable Investlgation, Forklifts Is unable to determine tlle veracity of the statements, and proof thereof Is demanded. 11. Denied. After reasonable Investlgation, Forklifts is unable to determine the veracity of the statements, and proof thereof is demanded, 12, Denied. After reasonable investigation, Forklifts is unable to determine the veracity of the statements, and proof thereof is demanded. 13. Denied. After reasonable investlgation, Forklifts is unable to determine the veracity of the statements, and proof thereof is demanded. 14. Denied. After reasonable investlgation, Forklifts is unable to determine the veracity of the statements, and proof thereof is demanded. COUNT I JOHN P. ADAMS AND SANDRA L. ADAMS V. CLARK MATERIAL HANDLING COMPANY 5.TRICT LIABILITY 15. - 16. This count is directed to another defendant, COUNT II JOHN P. ADAMS AND SANDRA L, ADAMS V. FORI<LIFrS, INC. :;TRIer LIABILITY AND NEGLIGENCE 17. The answers to paragraphs 1 through 16 are incorporated herein and reference is made thereto. 18. Admitted in part and denied in part. It is admitted that Forklifts was the seller of the lift truck, and it was sold on May 10, 1991. It is specifically denied that there was any defect with respect to said piece of equipment. and, therefore, Forklifts is not strictly liable under Section 402A of the Restatement of Torts. 19. It Is admitted that planned maintenance and repairs were done to the subject lift truck by Forklifts. 20. (a) Denied. It Is denied that Forklifts was negligent in the planned maintenance of this Uft truck, and, at all times relevant hereto, Forklifts performed the planned maintenance in accordance with manufacturer's recommendations. (b) Denied. It Is denied that Forklifts was negligent in the planned maintenance of this 11ft truck, and, at all times relevant hereto, ForklUts (c) Denied. to the lift truck. All pertinent warnings were properly affixed performed the planned maintenance In accordance with manufacturer's recommendations. (d) Denied, The parking/emergency brake was properly adjusted to the best of Forklifts' knowledge, (e) Denied. Forklifts Is unaware of "delayed reverse movement," and, therefore, could not warn of such a phenomenon. (0 Denied. To the best of Forklifts' knowledge, Information. and belief, the 11ft truck In question does not engage In reverse without an operator present. 21. Denied. Forklifts did not have exclusive control over the Instrumentality. Therefore, the Doctrine of Res Ipsa Loquitur does not apply. WHEREFORE, lt Is prayed that judgment be entered In favor of the Defendant, Forklifts, Inc" and against the plaintiffs. NBW MAnER AGAINST THE PLAINTIFFS 22. All of the plalntiff's alleged Injuries and damages are as a direct and proximate result of the plaintiff'S own negligence In the manner In which he acted on the day of the Incident, In that the plaintiff operated the 11ft truck In question In a careless and negligent manner, due to his fallure to turn the 11ft truck off before he dismounted the vehicle, and In falling to set the parking brake. 23. Allor part of the plalntUf'S alleged Injuries and damages are barred by the operation of the Comparative Negligence Act of the Commonwealth of Pennsylvania. 24. The plalntHf's claims for Injuries and damages are barred by operation of the Doctrine of Assumption of Risk, In that the plaintiff placed hlmseU In a position of possible Injury. 25. AU of the plaintiff's alleged Injuries and damages are a direct and proximate result of the negligent actions andlor Inactions of parties other than Defendant, Forklifts, Inc. WHEREFORE, It Is prayed that judgment be entered In favor of Defendant, Forkl1fts, Inc" and against the plalntUfs, IlBWMATT~;'..~:~r=~i~~~f::i"ANDL1NJ;i 26, In the event the plaintiff should prove said allegations In the Complaint, the Defendant. Clark Material Handling Company, Is solely Uable to the plaintiff; or, In the alternative, jointly and severally Uable with Defendant, Forklifts, Inc., and/or Uable to Defendant, Forklifts, Inc., for contribution and indemnification. WHEREFORE. Defendant, Forklifts. Inc.. demands judgment against Defendant, Clark Material Handling Company, for sole lIablUty to the plalntUf; or, in the alternative. jointly and severally Uable with Defendant, ForkUfts, Inc., or, In the fwther alternative. lIabmty over to Defendant, Forklifts, Inc., for contribution and/or Indemnification. DOUGLAS, OOUGLAS &it DOUGLAS By Attorney for PlalntUfs Date: ,. NO. 95-5368 CIVIL TERM JOHN P. ADAMS, and his: IN THE COURT OF COMMON PLEAS OF Wife, SANDRA L. ADAMS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW V. CLARK MATERIAL HANDLING COMPANY and FORKLIFI'S, INC, JURY TRIAL DEMANDED AFPIPA VIT COMMONWEALTH OF PENNSYLVANIA ) George F, Lance, being duly sworn according to law, deposes and says that he is the Vice President of Forklifts. Inc., and that the averments In the within pleading are true and correct, to the best of signer's knowledge, information, and bellef. COUNTY OF CUMBERLAND . . ) 55. () Y~~1. George F. Lance r; Nlut...L Sworn and subscribed to before me this..J 'icL . day of ~701Jl111bltJ 1995. ~ l ; . .1uL fh. ,~(l '--.1 Notary r\ NOTARIAL SEAL JAM" ",LAY NOTARY rtIU CARUSlE BORO., CUMBERlAHII OOUIl1Y MY COIIlISSlOll EXPIRES lUNE Il1tt IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOHN p, ADAMS and SANDRA L. ADAMS, PLAINTIFFS CIVIL ACTION - LAW NO. 95-5368 CIVIL TERM v. CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC., DEFENDANTS JURY TRIAL DEMANDED PRAKCIP. TO SUBSTITUT. VERIPICATION TO THE PROTHONOTARY I Defendant, Clark Material Handling Company, respectfully requests that the Verification of David C. Field, the original of which is attached hereto, be substituted and attached to Clark Material Handling Company's Answer with New Matter to Plaintiffs' Amended complaint which was filed on July 22, 1996 with a telefacsimile copy of Mr. Field's Verification, MARSHALL, DENNEHEY, WARNER, COLEMAN AND GOGGIN ~<;,. 17108-0803 Attorneys for Defendant, Clark Material Handling Company DATE I July 30, 1996 is true and oorrect, v.aIrIC.'1'IOM I, DAVID C, FIELD, declare that I am the house counsel for Clark Material Handling company, and that I am exeouting the foregoing Answer of Defendant, Clark Material Handling company, to Plaintiffs' Amended complaint With New Matter for and on behalf of said Defendant, and that I am duly authorized to do so, That the matters stated in the foregoing Answer are not within my personal knowledge and I am informed that there is no officer of Defendant who has personal knowledge of such matters; that the faots stated in said answer have been assembled by authorized e.ployee. and counsel of Defendant, and I am informed by said oounsel that the faots stated in said answer are true, I deolare, under penalty of perjury, under the laws of the state of Ksntucky, that the foregoing Executed this the ~ day of Lexington, Kentucky, ~(!Ol\ , 1996 at COMPANY CLARK BY: STATE OF KENTUCKY COUNTY OF FAYETTE 1; Jl FIELD attorney Kentucky CIRTIrICATI or SIRVICI I. Susan M. Williams, an employee of Marshall, Dennehey, Warner. Coleman & Goggin, do hereby certify that on this 30th day of July, 1996 served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Terry S. Hyman, Esquire ANGINO , ROVNER, P.C. 4503 North Front Street Harrisburg, PA 17110 William P. Douglas, Esquire DOUGLAS, DOUGLAS & DOUGLAS 27 West High Street P.O. Bolt 261 Carlisle, PA 17013-0261 SUSAN M. WILLIAMS ">- s.:,.' ,., ." t~ UI.., "de' ~~: fijL IT:l; r. 1-', L' ," c .. _:r l~ ... '- , : '4- to.) ;:.::11 ...: i::"1 ..\~i . ., .(5 -lU.. j :....J '! c,'-: t: - ~ ;:-; . ., C:f' JOHN p, ADAMS and his wife, SANDRA L, ADAMS, plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : , , v, : CIVIL ACTION - LAW , , CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC" Defendants : NO, 95-5368 CIVIL TERM , , : llLaIII'l'II'..' ..liLY '1'0 OW D'l'T.. 01' D...IIDUI'l' I'ORItLII''l'I. 1110. 22-25, The allegations herein state conclusions of law to which no response is necessary, I f a response is deemed necessary, then plaintiffS deny the averments generally as permitted under Pa,R,C,P, 1029(e) (1), AN (0 ROVNER, p,C, DATED: \\- ~\ -'\~ 79JDI/PJD , COMMONWEALTH OF PENNSYLVANIA : : as, COUNTY OF DAUPHIN : I, TERRY S, HYMAN, being duly sworn according to law, depose and state that I am counsel for plaintiff(s), that I am authorized to mike this Affidavit on behalf of said Plaintiff(s) and that the fects .et forth in the foregoing PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT FORKLIFTS, INe, are true and correct to the best of my knowledge and belief, sworn to and subscribed before .e thh ~tt day of \11l\\ht. , 1995, ~(j.~,) Notary 1 c \.... ,,,.. .--.r~~''';-L .: '." '''-'~_...''''.l - t' -" .....- J~II .~. r. I \, '~:'-il'fi1f I l. '.;.q rv~Uc Ih:tJ~n;:. O.-.':,'h1n <'~'-.'i'ii. PA I '.J:('1:,\,,_t,:,";f-':_'I'.l:..:'1.h22. 1tt'} ~. ..._.....,~...<' -.-. .... 1,,9J/'ID CERTIFICATE OF SERVICE , AND NOW, thi. ~\\\i, day of November, 1995 I, Pamela J, Gill..pi., an .mployee of Anqino , Rovner, p,C., do hereby o.rtify that I have .erv.d a true and oorreot copy of the PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT FORRLIFTS, INC, in the unit.d stat.. mail, po.tage prepaid at Harri.burg, pennsylvania, addr....d a. follow.: william p, DouglaS, Elquire DOUGLAS, DOUGLAS . DOUGLAS P.o, Box 261 27 welt High stre.t Carli.le PA 17013-0261 Walter H, swayze, III, E.quire MARSHALL, DENNEHEY, WARNER, COLEMAN . GOGGIN 1845 Walnut str..t philadelphia PA 19103-4797 \: ' . ~"s.~),. ~~.'v Pae a J ,'- Gin pie 6910'.... '" IN THE COURT or CONNON PLEAS or CUMBERLAND COUNTY, PBNNSYLVANIA JOHN p, ADAMS and His Wife, SANDRA L. ADAMS CIVIL ACTION - LAW vs. No. 95-5368 Civil Term CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. RESPONSI or DlrBNDANT, CLARK MATBRIAL HANDLING COMPANY. TO THI NIW MATTER or DBrBNDANT, rORKLIrTS, INC" AGAINST DBrBNDANT, CLARJt MATERIAL HANDLING COMPANY PURSUANT TO PA, R,C.P, 3353/d) Answering Defendant, Clark Material Handling Company, incorporating by reference its Answer With New Matter to Plaintiffs' Complaint as though set forth at length herein, responds as follows to the New Matter of Defendant, Forklifts, Inc. againet Defendant, Clark Material Handling company pursuant to Pa. R.C.P. 2252(d) I 26. Denied. To the extent the allegations set forth in Paragraph 26 of the New Matter of Forklifts, Inc, constitute conclusions of law, no response is required under the Pennsylvania Rules of civil Procedure. By way of further response. it is specifically denied that Defendant, Clark Material Handling Company, is liable to Plaintiff or Co-Defendant on any theory whatsoever and it is further specifically denied that Clark Material Handling Company is solely liable to Plaintiff or, in the alternative, jointly and severally liable with Defendant, Forklifts, Inc. andlor liable to Defendant, Forklifts, Inc. for contribution and indemnification. Strict proof is demanded at trial, .. ~ i' I WHEREFORE, Answering Defendant, Clark Material Handling Company, demands judgment against Defendant, Forklifts, Inc. on the New Matter of Forklifts, Inc. together with costs, interest and attorney's fees. MARSHALL, DENNBHIY, WARNIR, COLlMAN . GOGGIN BY' dnr WALTIR H, SWAYZI III Attorney for Defendant, Clark Material Handling Company 1845 Walnut Street - 17th Floor philadelphia. PA 19103-4797 (:a5) 575-2823 -2- . " IN THE COURT OP COMMON PLEAS OP CUMBERLAND COUNTY, PENNSYLVANIA JOHN P. ADAMS and His Wife, SANDRA L. ADAMS CIVIL ACTION - LAW vs. No. 95-5368 civil Term CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. CERTIPICATION OP SERVICE It is hereby certified that a true and correct copy of the RESPONSE OF DEFENDANT, CLARK MATERIAL HANDLING COMPANY, TO THE NEW MATTER OF DEFENDANT, FORKLIFTS, INC., AGAINST DEFENDANT, CLARK MATERIAL HANDLING COMPANY, PURSUANT TO PA. R.C.P. 2252(d) was served by regular mail upon the following: counsel for plaintiffs: Terry S. Hyman, Esquire 4503 North Front Street Harrisburg, PA 17110 counsel for Defendant, Forklifts, Inc.: William P. Douglas, Esquire DOUGLAS, DOUGLAS & DOUGLAS 27 West High street p, O. Box 261 Carlisle, PA 17013-0261 MARSHALL. DENNBHEY, WARNER. COLlMAN ~ GOGGIN .y,-t~ Attorney for Defendant, Clark Material Handling Company 1845 Walnut Street - 17th ploor Philadelphia. PA 19103-4797 (215) 575-2823 DATE: /;f?/f:; IN THI COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PINNSYLVANIA JOHN P. ADAMS and His Wife, SANDRA L. ADAMS CIVIL ACTION - LAW No. 95-5368 Civil Term vs. cLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. ANSWER OF DEFBNDAN'l'. C~~ _MATERIAL HANDLING COMPANY. T~ ~~~NT~!'l!' COM~~INT WITH NBW NA'l"l'Il\ 1. Denied, After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 1 of plaintiffs' Complaint. Therefore, said averments are denied. 2. Admitted in part; denied in part. It is admitted only that defendant, Clark Material Handling Company, is a corporation engaged in the manufacture, design, distribution and sales of industrial material handling equipment. It is denied that answering defendant regularly sells products and otherwise conducts business in cumberland County, Pennsylvania andlor that the product at issue in this matter was designed, manufactured and eold by answering defendant. Strict proof is demanded at trial. 3. To the extent the averments set fOl,th in paragraph 3 of Plaintiffs' Complaint are directed to a party other than answering defendant, no response is required under the pennsylvania Rules of Civil Procedure, 4. Denied. To the extent the allegations set forth in paragraph 4 of Plaintiffs' Complaint constitute conclusions of law, no response is required under the pennsylvania Rules of civil Procedure, By way of further response, it is specifically denied that defendant, Forklifts, Inc., is an agent of defendant, Clark Material Handling Company; Forklifts, Inc. and Clark Material Handling Company are separate jural entities and allegations as to any agency relationship are specifically denied. strict proof is demanded at trial. 5. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 5 of Plaintiffs' Complaint, Strict proof is demanded at trial. 6. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 6 of Plaintiffs' complaint. Accordingly, said averments are specifically denied, By way of further response, any and all allegations as to the identity of the forklift including its make and model are specifically denied as plaintiffs are left to thei~ proofs, Strict proof is demanded at trial. 7. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 7 of Plaintiffs' complaint. Strict proof is demanded at trial. B. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph B of Plaintiffs' complaint. Strict proof is demanded at trial. 9, Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 9 of Plaintiffs' complaint, therefore, said averments are specifically denied. By way of further response, if plaintiff sustained injuries as alleged including the injuries set forth in paragraph 9 of Plaintiffs' complaint, answering defendant denies any and all liability therefore. strict proof is demanded at trial. 10. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 10 of Plaintiffs' complaint, therefore, said averments are specifically denied. By way of further response, if plaintiff did sustain injuries as alleged in paragraph 10 of Plaintiffs' Complaint, and/or plaintiff will incur additional medical expenses in the future, answering defendant denies any and all liability for past, present and future injuries, strict proof is demanded at trial. -3- 11, Denied, After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 11, therefore, said averments are denied. By way of further response, it is specifically denied that plaintiff has suffered a permanent diminution of his earning capacity. If plaintiff hae andlor will sustain injuries, damages andlor losses as alleged, answerirg defendant denies any and all liability therefore. Strict proof is demanded at trial. 12. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 12 of plaintiffs' complaint, therefore, said averments are specifically denied. By way of further response, it is specifically denied that as a direct result of the accident described in Plaintiffs' Complaint, plaintiff incurred medical bills approaching $15,000.00 in wage losses in excess of $6,000.00. If plaintiff has and/or will sustain injuries, damages andlor losses as set forth in Plaintiffs' Complaint, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. 13. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 13 of Plaintiffs' Complaint, therefore, said averments are specifically denied, By way of further response, it is -4- specifically denied that as a direct result of his injuries, plaintiff has in the past suffered acute and disabling pain and will in the future suffer pain, anxiety and suffering. If plaintiff has sustained injuries, damages andlor losses as alleged in Plaintiffs' Complaint, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. 14. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 14 of Plaintiffs' Complaint, therefore, said avermente are specifically denied. By way of further response, it is specifically denied that as a direct result of plaintiff- husband's injuries, plaintiff-wife has suffered a loss of consortium, advice, society and comfort. If plaintiff-wife has suffered injuries, damages andlor losses as alleged, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. COUNT I John p, Adam. and Sand~a L, Adam. v, Clark Material Handlina ComDanv STRICT LIABILITY 15. Answering defendant, Clark Material Handling company, incorporates its responses to paragraphs 1 through 14, inclusive, of Plaintiffs' Complaint as though set forth at length herein. 16. Denied. To the extent the allegations set forth in paragraph 16 of plaintiffs' complaint constitute conclusions of law, no response is required under the Pennsylvania Rules of civil procedure. By way of further response, it is specifically -5- denied that answering defendant, Clark Material Handling Company, is strictly liable to plaintiff under ~402(A) of the Restatement of Torte (Second) for the damages alleged in Plaintiffs' complaint which were directly and proximately caused by the forklift truck identified in Plaintiffs' complaint. By way of further response, it is specifically denied that the forklift described in plaintiffs' Complaint in its as-marketed condition caused or contributed to the cause of the subject accident or plaintiff's injuries with regard to its design. manufacture or marketing, including but not limited to the following: (a) It is specifically denied that the forklift described in Plaintiffs' complaint malfunctioned in the absence of a reasonable secondary cause when it went into reverse without a driver present on the vehicle; (b) It is specifically denied that the subject forklift described in Plaintiffs' Complaint was defective in any manner whatsoever in failing to have any operator presence controls on the forklift; By way of further response, the forklift is equipped with a hand operated parking brake and an ignition as well as warnings which make the forklift safe for its intended use; (c) It is specifically denied that the subject forklift described in plaintiffs' complaint was defective in any manner whatsoever with respect to constructing the forward/neutral/reverse shift lever, linkage and hydraulic -6- control system without separate, distinct detents for forward, reverse and neutral; (d) It is specifically denied that the subject forklift described in Plaintiffs' Complaint was defective in any manner whatsoever including constructing the shift lever, shift linkage and hydraulic control system in such a manner that the operator could place the vehicle in what appeared to be neutral position when the vehicle, in fact, was in reverse; (e) It is specifically denied that the subject forklift described in Plaintiffs' Complaint was defective in any manner whatsoever including designing and constructing the shift lever, shift linkage and hydraulic control system which would allow the hydraulic control system to operate in such a manner that the hydraulic cylinder could receive hydraulic fluid in the reverse position at a slow rate, resulting in a delayed movement of the vehicle in the reverse direction; (f) It is specifically denied that the subject forklift described in Plaintiffs' Complaint was defective in any manner whatsoever including failing to provide a shift system which had distinct positions for forward, neutral and reverse; (g) It is specifically denied that the subject forklift described in plaintiffs' complaint was defective in any manner whatsoever including failing to provide a control system in which the shift lever, shift linkage or hydraulic control system could be held in the neutral position; -7- (h) It is specifically denied that the subject forklift described in Plaintiffs' complaint wns defective in any manner whatsoever including failing to provide adequate warnings to appraise the operator that the vehicle could, or did have a tendency to, move in a reverse direction after a period of delay and while the operator could be off the vehicle; (i) It is specifically denied that the subject forklift was defective in any manner whatsoever in failing to provide accurate instructions regarding the need to adjust the shift linkage, shift lever and/or the hydraulic control system to avoid delayed reverse movement of the lift truck without a rider present; (j) It is specifically denied that the subject forklift described in plaintiffs' complaint was defective in any manner whatsoever including failing to provide adequate operator instructions regarding the placement of the shift lever in the neutral or reverse position and the consequence of failing to do so accurately; (k) It is specifically denied that the subject described in Plaintiffs' complaint was defective in any manner whatsoever including designing the system such that there was or could be too much free play in the neutral reverse position; (1) It is specifically denied that the subject forklift was defective in any manner whatsoever including utilizing an emergency brake system which could and did regularly -8- .,.-. ......,-.< come out of adjustment or could be maladjusted by an individual operator, rather than utilizing a fixed system; (m) It is specifically denied that the subject product was defective in any manner whatsoever including failing to utilize and incorporate an automatic parking brake on to the vehicle or on to the vehicle's pedals; (n) It is specifically denied that the subject product was defective in any manner whatsoever, and it is specifically denied that the vehicle was unsafe in any manner whatsoever; To the contrary, the subject product, as marketed, contained every element necessary to make it safe for its intended use and was safe for its intended purpose. Strict proof of the foregoing allegations is demanded at trial, WHEREFORE, answering defendant requests this Honorable Court enter judgment in favor of defendant, Clark Material Handling Company, and against plaintiffs, together with costs and attorney's fees. COUNT II John P. Ad;:a and Sandra Adama v, Forklifta, Inc, S lCT LIABILITY AND NlGLIGINCB 17. Answering defendant, Clark Material Handling company, incorporates by reference its responees to paragraphs 1 through 16, inclusive, of Plaintiffs' Complaint as though set forth at length herein. 18. The allegations set forth in paragraph 18 pertain to a party other than answering defendant, therefore, no response is required under the Pennsylvania Rules of civil Procedure. -9- 19. The allegations set forth in paragraph 19 pertain to a party other than answering defendant, therefore, no response is required under the Pennsylvania Rules of civil Procedure. 20(a-f), inclusive. The allegations set forth in paragraph 20 pertain to a party other than answering defendant, therefore, no t'esponse is required under the Pennsylvania Rules of Civil Procedure. 21. The allegations set forth in paragraph 18 pertain to a party other than answering defendant, therefore, no response is required under the Pennsylvania Rules of civil Procedure. WHEREFORE, answering defendant requests this Honorable Court enter judgment in favor of defendant, Clark Material Handling company, and against plaintiffs, together with costs and attorney's fees. NIW NATTIR 22. plaintiffs' Complaint fails to state a cause of action upon which relief may be granted. 23. The conduct of persons, parties andlor entities other than Clark Material Handling Company waslwere the proximate cause of plaintiffs' injuries, damages and losses as alleged. 24. The conduct of persons, partip-A andlor entities other than Clark Material Handling company may have been intervening, superseding causes of plaintiffs' injuries, damages and losses as alleged. 25. The conduct of the plaintiff was the sole cause of injuries, damages and losses, if any. -10- l. , 26, The subject product may have been substantially changed in its condition after it left the possession of the manufacturer. 27. The subject product may have been misused andlor abused. i I ~ 28. plaintiff assumed the risk of a known danger. 29. Strict products liability is inapplicable as a matter of law. 30. The subject product, as designed, manufactured and marketed, contained every element necessary to make it safe for its reasonably foreseeable and intended uses. 31. As a matter of law and social policy, the subject product was not unreasonably dangerous. 32. The subject forklift was equipped with a parking brake which, if properly maintained and used by plaintiff, would have prevented plaintiff's injuries. 33. The product identified in plaintiff's Complaint is not a product of defendant, Clark Material Handling Company. 34. The product contained all necessary warnings, instructions and directions. 35. The product, as marketed with warnings, instructions and directions was safe for its intended use inasmuch as if said warnings are followed, the product is safe for its intended use. 36. Forklifts, Inc. is not an agent of answering defendant and, therefore, the pleading of agency relationship therefore is improper as a matter of law and fact. -11- . . . - .-' ...:- ':-' ~"'~';-.-. .. ~_:~.,"~ ., # 37. Delay damages are inapplicable and unconstitutional. 38, Answering defendant respectfully reserves the right to amend its New Matter. WHEREFORE, answering defendant requests this Honorable Court enter judgment in favor of defendant, Clark Material Handling Company, and against plaintiffs, together with costs and attorney's fees. MARSHALL, DENNEHEY, WARNER, COL~E& .OGGIN BY: , E QUIRE WALTER H, SWA~ZE. III. ESQUIRE Attorneys for Defendant, Clark Material Handling company 1845 Walnut Street Philadelphia, PA 19103-4797 (215) 575-2600 -1- ,~_.,......,,{;.,. VERIFICATION I, DAVID C. FIELD, declare that I am house counsel for Clark Material Handling Company, and that I am executing the foregoing Answer of Defendant, Clark Material Handling company, to Plaintiffs' Complaint with New Matter for and on behalf of said Defendant, and that I am duly authorized to do so. That the matters stated in the foregoing responses are not within my personal knowledge and I am informed that there is no officer of Defendant who has personal knowledge of such matters; that the facts stated in said responses have been assembled by authorized employees and counsel of Defendant, and I am informed by said counsel that the facts stated in said responses are true, I declare, under penalty of perjury, under the laws of the state of Kentucky, that the foregoing Executed this the ~ day of Lexington, Kentucky. is true and correct. _~JI~ , 1995 at CLAR~ERIAL HANDLING By: /;JeJ ~I DAVID C. titt..D COMPANY STATE OF KENTUCKY COUNTY OF FAYETTE SUBSCRIBED AND SWORN to before me by DAVID C. FIELD attorney for Clark Material Handling Company, this :l!!:.L day of ,.<j~,,<..t4)1 k./z-.. 1995. My Commission IN THB COURT OF COMMON PLEAS OF CUMBBRLAND COUNTY. PBNNSYLVANIA JOHN P. ADAMS and His Wife, SANDRA L. ADAMS CIVIL ACTION - LAW vs, No. 95-5368 Civil Term CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. CBRTIPICATION OF SERVICE I hereby certify that I have served the Answer to plaintiff's complaint with New Matter upon all parties as listed below on this date. Terry S. Hyman, Esquire 4503 North Front street Harrisburg, PA 17110 William P. Douglas, Esquire DOUGLAS, DOUGLAS & DOUGLAS 27 West High Street P. O. Box 261 Carlisle, PA 17013-0261 , WARNER, ... ..... y , III or Defendant, rial Handling 1845 Walnut Street philadelphia, PA 19103 (215) 575-2823 DATED I November 27, 1995 JOHN P. ADAMS and hi. wife, SANDRA L. ADAMS, Plaintiff. I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I v. CIVIL ACTION - LAW NO. 95-5368 CIVIL TERM . . CLARK MATERIAL HANDLING COMPANY and FORlCLIFTS, INC., Defendant. ORD.. AND NOW, thie day of 19515, upon con.ideration of Plaintiff.' Preliminary Objection. to New Matter of Defendant Clark Material Handling Company, paragraph. 22, 23, 24, 25, 26, 27, 28, 29, 31, 34, 35, 37 and 38 of Defendant Clark Material Handling Company'. New Matter are hereby STRICKEN. BY THE COURT, J. '!79l1LAS JOHN P. ADAMS and his wife, SANDRA L. ADAMS, Plaintiff. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-5368 CIVIL TERM v. CLARK MATERIAL HANDLING COMPANY and FORlCLIFTS, INC., Defendants .I.&III'1'I...' ...LIIII--Y OllJaMIO.. 'l'O OW D'1"1'a. O. D..aMD~ O'~-. D~a.IaL ..VftLI.G COII...v 1. Pa.R.C.P. 1029 requires that where a party plead. an affirmative defense in New Matter, it mu.t .tate the material facts upon which the defense is based. 2. Defendant's New Matter raise. affirmative defense. by stating only conclusions of law without stating any material fact underlying the affirmative defense. 3. Defendant a.serts that the conduct of persons, parties and entities other than the Defendant are responsible for Plaintiff's accident without identifying the parties or their conduct. 4. Defendant also asserts that the product "may have been" misused or substantially altered, an improper pleading not permitted under the Pennsylvania Rule. of Court. 5. Defendant further "respectfully reserve. the right to amend its New Matter", which is likewise improper. Amendment is permitted only where the Defendant complies with the Rulee of civil Procedure and obtains approval for the amendment from the Court. ., ..,:..,~;~.., 0" -.-;' ~,"__.-, ,i+,~."Ft ~'l"," 6. Within 20 days of the filing of Defendant's Answer and New Matter, Plaintiffs' couns.l contact.d counsel for Defendant Clark conc.rning his intent to file Pr.liminary Objection.. Defense couns.l sugg.sted that the parties could re.olve Plaintiff.' concerns by stipUlation, rather than Preli.inary Obj.ction.. 7. In response, Plaintiffs proposed an agr.e.ent that Def.ndant provide substantive answers to contention interrogatories identifying the affirmative defense. and th.ir base.. Defendant also granted Plaintiffs an extension for filing Plaintiffs' Response to N.w Matter until the stipulation could be discus.ed with his client and approved. (Letter of Decellber 7, 1995, attached as Exhibit "A".) 8. On February 5, 151516, having received no confiraation of an agreement, Plaintiff's coun.el drafted a stipulation and requested Defense counsel formalize the under. tanding by signing the stipulation by February 18. (Letter of February 5, attached as Exhibit liB".) 9. By letter of February 28, 1996 (EXhibit "C"), Plaintiff again requested Defendant enter an agreement to answer contention interrogatories in order to alleviate the problems inherent in Defendant's non-specific alleqations in New Matter. 10. By letter of March 19, 1996 (Exhibit liD") Plaintiffs' counsel made one last-ditch effort to resolve the issues without 2 Court intervention, asking defense counsel to aall by March 25, 19516 if Clark was goinq to lign the StipUlation. Defendant did not respond. WHEREFORE, Plaintiffs move to strike all affirmative defenses pled in paragraphs 22, 23, 24, 25, 26, 27, 28, 251, 31, 34, 35, 37 and 38. Respectfully submitted, ANGINO , ROVNER, P.C. ~. I. . No. 4503 No Front Street Harrisburg, PA 17110 (717) 238-67511 Attorney. for Plaintiffs Date I 14,-~ '~lo 3 CERTIFICATE OF SERVICE AND NOW, this L\ \Q.... day of Maroh, 15196, I, pa..la J. Gill..pie, an e.ploy.. of Angino , Rovn.r, P.C., do h.r.by o.rtify that I have ..rv.d a true and corr.ct copy of the PLAINTIFFS' OBJECTIONS TO NEW MATTER OF DEFENDANT CLARK MATERIAL HANDLING COMPANY in the Unit.d stat.s .ail, postage pr.paid at Harrisburg, P.nn.ylvania, addr...ed as follows I Walter H. swayze, III, Esquire MARSHALL, DENNEHEY, WARNER, COLlMAN , GOGGIN 1845 Walnut Street Philadelphia PA 1'103-4797 Attorneys for Defendant Clark Material Handling Co.pany william P. Douglas, Esquire DOUGLAS, DOUGLAS , DOUGLAS P.O. Box 261 27 West High Street Carlisle PA 17013-0261 ~cv...o-~ ~ ~~ pa.ela J. G 1 ~p e aUIBI'I' "a" r ( 1OIIftlM. ..uu.o' ,..va.1MWl DAVID L LUT& IGCIWIL" ~Jt ....... O.1lI\lMAH CA118IIIIIIUWlADY-IMlTlI IIICI!AaD A. IADLOCl DAVID I. W/lIIIU ANGINa & ROVNER, P, C. . tflICU c. OUON MICI\AEL/. HAVIl1JtV KOItH ,. MAUIlIJ.A IAWUHCI F. IUOHIl PAWN L./EHHlHOS I1VllEH K.IQlUSEH iQI.OMPI/ Z. U/iVIJtV IOSEPll M. POIlA unm> tH 'OlE 8fST lAWYERS -11I- AMFW IUCHAIP C. ANDINO HEIL/. KOVHU December 7, 1995 Walter H. swayze, III, Esquire Marshall, Dennehey, Warner, coleman' Goggin 1845 walnut street Philadelphia PA 19103-4797 ReI Adams v. Clark Material Handling and Forklifts, Inc. Your File No. 03052-00127 Dear Mr. swayze: As discussed I am enclosing Request for Admissions in response to your denial that Clark does business in cumberland county and that the product involved in the accident as yours. Pleas. understand that if you do not file timely answers to the Request for Admissions or amended Answers to the Request after you have inspected the vehicle, I will seek sanctions for bad faith discovery. There is and will be absolutely no dispute that Clark does regular business with Forklifts, Inc., which is located in cumberland county nor that the vehicle involved in this accident was a Clark product. As discussed I would like to avoid unnecessary procedural arguments, while at the same time protecting my client against "surprises" at trial. I am willing to forgo filing preliminary Objections to the extremely vague allegations of New Matter provided that we can reach an agreement concerning identifications of those affirmative defenses you actually will assert at trial as the facts underlying each defense. I therefore propose an agreement by counsel that you will answer my contention interrogatories which as you to identify you theories of defense within 45 days after receiving my expert report. I further propose we meet and establish a reasonable deadline for the exchange of expert reports, so we can both be in position to prepare for trial. UOS HORTH FROHT STREET. HARRISBURG. PA 11 110.1101 11'7)2~7t' FAX (717) 2....,0 r ,. ~\.. ,., Walter H. swayze, III, Esquire Deceaber 7, 151915 Pav. 2 Pl.as. let me know your respon8e to my prop08als as soon a8 possible. Until I hear from you I will assume I have an extension to fil. my response to your New Matter. Very truly yours, ~..."" T8H/1.. Inclosure CCI William P. Douglas, Esquire (w/enc.) aUIBI'I' "I" ...-~""-.,,,-. - r ,.. .. tflICU c. OUON MJCIWlL I. HAVlnltV ... . IAWUHCI F. 'UotnI PAWN L Jl!NH1HOS I11!FlCEH K. ftIDI!Ul!H I5(lI.OMON Z. U/iVIKY IOSEPll M. POW< ANGINa & ROVNER, P, C. /OIlII'IIM. MEl.ILID ....V I. HYMAH DAVID L LUT& MJClWILll. KOSIK ..-.A o. IIl\lMAH IIICI!AaD A. IAlJl(lClt PAVID I. WISNESKI USl1lIIIN 11IE BfST lAWYERS -IN- AMIi1CA IUCl....JtO C. ANDINO HI!IL I. KOVN1!ll February 5, 1996 Walter H. swayze, III, Esquire Marshall, Dennehey, Warner, coleman' Goggin 1845 Walnut street Philadelphia PA 19103-4797 ReI Adams v. Clark Material Handling and Forklifts, Ino. Your File No. 03052-00127 Dear petel It appears that somehoW our oral cOl\lDlunioations and your follow-uP letter do not always match preciselY. My understanding of our discussion at the inspection was that you would send me not only copies of all the photographs taken by both experts, but also their field notes and measurements of the various forces involved done by your experts on the lift. Additionally, I indicated that I was not sure whether my expert took photographs but that I would check and send you what I had. I did not represent to you that they actuallY exiut. I do not believe any video was taken at the inspection but will again check our records to be certain. I will have our videographer send you a oomplete unedited copy of the video. I also look forward to getting dates from you for a corporate designee deposition from Clark and answers to the discovery which we served upon you, which you promised to supplY by January 19. I have also reviewed my letter to you of Deoember 7, 1995, following the filing of your Answer and New Matter. You have now inspected the lift in question. I see no rational basis for you to refuse to acknowledge that you are the manufacturer and that Clark does bueiness in pennsylvania. please file either an amended answer to our Request for Admissions and/or an Amended Answer to the complaint. In reviewing my December letter, I realized that I have no written document acknowledging our agreement ooncerning your filing either Amended New Matter or answers to our contention 15029/PJO U03 HORTH FRONT ITREET. HARRISSURG, PA 11110.1101 (1m 231-41191 FAX (1m ':11.14110 r Walter H. swayze, III, Esquire February 5, 1996 Page 2 interrogatories 45 days after receiving my expert report. I have therefore enclosed a stipulation to that effoct. Please sign it and return it to me by February 18. If I do not receive it by then, I will be filling both Preliminary Objections to your Answer and a Motion to Compel. As I've stated before I do not wish to be blindsided or have to deal with defenses disclosed at the last minute rather than during discovery. If you are not willing, or ignore the stipulation, I will have the Court issue an Order to protect me. I continue to look forward to working with you on a cooperative basis. I also look forward to receiving some substantive information regarding the case. Very truly yours, TSH/pjg CCI william P. Douglas, Esqui ......<<"......-.....', r r JOHN P. ADAMS and his wife, SANDRA L. ADAMS, plaintiffs I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. 95-5368 CIVIL TERM CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC., Defendants I 8TXPULA~XOH o. COUH81L AND NOW, plaintiffs John P. Adams and sandra L. Adams, his wife, by their counsel, Angino 'Rovner, P.C., and Defendant Clark Msterials Handling co., by its counsel Walter H. swayze III, Esquire, hereby stipulate and agree to the following: 1. plaintiffs will forego filing any preliminary Objections or any objection to the Answer and New Matter of Defendant Clark Materials Handling company, or the right to have a court declare any allegation in the Answer shall be deemed an admission of the corresponding allegation in the complaint, and shall not file an iuediate Motion to compel Answers to Plaintiffs' contention Interrogatories, provided Defendant Clark Materials Handling Company shall comply with the followin91 2. within thirty PO) days of the completion of their inspection of the subject forklift Clark shall file an Monded Answer and New Matter which substantively affirms or denies that Clark Materials Handling company regularly markets, advertises and 8S06S/TlM services equipment sold in the cOlIIIDonwealth of Pennsylvania or otherwise regularly conducts business within the COlIIIDonwealth, including cumberland county, Pennsylvania. 3. within forty-five (45) days of the receipt of Plaintiffs' expert report, Defendant Clark shall file Amended New Matter and/or verified Answers to Plaintiffs' contention Interrogatories which identifies the affirm~tive defenses which will be pursued at trial and allegations of the material facts upon which the defenses are based. The AIIIended New Matter or interrogatory answer shall identify all persons other than Clark, including plaintiff, who arc alleged to have contributed to plaintiff's injuries, the nature of the conduct alleged to have contributed to plaintiff's injuries, and the manner in which such conduct contributed to the alleged injuries and every alteration, misuse or abuse of the product and the manner in which the alleged alteration, misuse or abuse contributed to Plaintiffs' injuries. plaintiff shall not file an expert report until Defendant Clark has had a reasonable time to conduct relevant discovery from plaintiffs and other parties in order to determine the factual basis for the affirmative defenses. 4. Should Defendant clark Materials Handling company fail to comply with the terms of the stipUlation as set forth above, plaintiffs shall have the right to compel Defendant to do so, subject to such sanctions the Court deems appropriate, inoluding but not limited to, preolusion of evidence or binding admissions as 2 r r well as attorneys fees for filing an motion to enforce this Agreement. plaintiffs may also file any pleading which was ~vailable to Plaintiffs upon receipt of Clark's Answer and New Matter and seek any remedy which the Court deems appropriate. ANGINO , ROVNER, P.C. Terry s. Hyman, Esquire I.D. No. 36807 4503 North Front street Harrisburg PA 17110 (717) 238-6791 Counsel for Plaintiff DATED I MARSHALL, DENNEHEY, WARNER, COLEMAN , GOGGIN Walter H. swayze, Esquire 1845 Walnut street Philadelphia, PA 19103-4797 couneel for Defendant Clark Material Handling company 3 ?C;-~~:"-',:"t'-'::'i'i"_" d IUIII'I' 110" , 1OIIPIl1I.1GlIJU.O ,..V 1.1lYMAH PAVlDLWTL MlQWl.I. KOIIK ....... o. IH\IMAIl IIICI!AaD ,.. IADI.lICIt PAVID I. W1SHlSIU ANGlNO & ROVNER, P, C. tflICU C. OUOH MICIIAEL I. HAVmn IJS11!IlIH 'OlE 8fST ~WYF.RS -IH- AMERICA IAWUHCI F.BAlOHll DAWN L. JElIII1HOS IlVltEH K. rEDWEH iQI.OMPI/ Z. OIlVSKV IOSEI'lt M. DOIlIA JUCH,Ull C. ANDINO IIEIL uoVHU February 28, 1996 walter H. swayze, III, Esquire Marshall, Dennehey, Warner, coleman' Goggin 1845 Walnut street Philadelphia PA 151103-4797 ReI Adams v. Clark Material Handling and Forklift., Inc. Your File No. 03052-00127 Dear Petel To respond to your letter of February 22, 1996, I wanted to confira that we did send our Answers to Interrogatories and Respon.e to Request for production on February 16, 1996, and assume that they are already in your possession. If you do not have them, contaot my .ecretary, Pam Gillespie, and she will .end another copy. My concern. regarding Clark'S New Matter are alleviated to the extent we will be able to agrae to a discovery stipulation which inClude. an agreement to provide us with a statement of the dafen.e. which Clark will assert at trial. I would prefer the statement be in the fora of interrogatory responses to contention interrogatories rather than leaving it to me to determine which contantions are covered by an expert report and which by interrogatory responses. I want a summary of what you will actually pursue at trial in a single location for ease of reference for both myself and the court, should the need arise. In any case, we can discuss these matters on March 1. After that date, I will file an appropriate response to your New Matter ba.ed upon our ability to work out a mutually-agreeable method of re.olving my concerns. I look forward to talking to you then. TSH/pj9 eel William P. Douglas, Esqui e .50Z9/PJO nos HORTH FRONT STREET, HARRISBURG. PA 17110.1701 . (7171 231.e78\ FAX (7171231.&110 IOIEPll M. MEIJU.O BUV 1.1MWl PAWlLLIIn . IolICl\AEL E. KOI/It .AMEIA Q. IH\lMAIl ANGINa & ROVNER, P,C, HUOLI C. OUON MICIIAIL I. HAvmKV JtIClIAKD A.IADLOCl PAWl I. W1SHUIU US11!IlIH 11lE 8FSf lAWYERS -IH- .oom IAWUHCI ,. IAIIOHIl PAWN L.IIHHIIlOS I1VMIH II. I'IDDSEH IOLOMOH Z.IWlVIKV IOSEPll M. POIIA IllClIAIUl C. ANDINO HElL I. KOVHU March 19, 1996 Walter H. swayze, III, Esquire Marshall, PLnnehey, Warner, coleman' Goggin 1845 Walnut street Philadelphia PA 19103-4797 ReI Adams v. Clark Material Handling and Forklifts, Inc. Your File No. 03052-00127 Dear Petel I am getting a little concerned about the absence of concrete responses from you in this case. We have had several conversations in which you agreed to get baok to me to resolve outstanding issues in the pleadings and discovery. To date, I have not received your responses to our Interrogatories which were originally promised at the end of January. We filed our answers in the middle of February, understanding yours would be coming back shortly thereafter. It a month later and I have still not received them. AdditionallY, we agreed to a telephone conference on March 1st to set up depositions. You also agreed to contact your client to obtain their consent to a stipulation requiring you to answer our contention Interrogatories within a specified period of time following our expert report. I called you during the first week of March to follow up on these matters. I left my name and message on your voice mail. I have still not heard from you. I have received today yet another request for an authorization from mr client for you to obtain his medical records. I do not apprec ate discovery which floWS only in one direction. I will not provide any further discovery until you contact me to resolve the outstanding issues. Further, I will file preliminary Objections to your New Matter unless you sign an actual stipulation that I can file with the court. Please call me no later than March 25th. If not, I will file appropriate motions and Objections with the court which I will not eS029/FJO 4103 HORTH FROHT STREET, HARRI8BURO. PA 17110.1701 (1l7) 231-41711 FAX (1l7) t:JI.Mll0 . , Walter H. Swayze, III, Esquire March 151,. 151516 page 2 withdraw until they are argued or you provide substance rather than pro.ise. TSH/pjg CCI Williaa P. Dougla., pan I ftW".,,,;,.<~,,,,,J,.....n.IIN..__ _.,y.'l't\'f''''''''~'~f.'"lt~qlIf\,t"".,''''''4otrtC~.I"1'\''M1rt:t"#'H'ft j" .- -' (..- i .' ).... , .:.' '[I. '\"-l\ ~:' i. ./. ) ~~~I ." IT- l.~'" ... ~)L, ; 0' . :,1 e , , "1 .,.- 0' ( ',',", -.;.' , I ~.:.. ,-' . _.:'~ t' .., ..) l~. ,-,' .J PRAECIPE FOR LlSnNG CASE FOR ARGUMENT (Mult lie typewritten IIId IIIbmlttld In dupUcat.) TO THE PROTHONOTARY IOF CUMBERLAND COUNTY: PI.... Usllbl w\lhIn mallll fOllb. nlllt: o PrI.Trlll "'lIImlnl Courl [!) "'lUmenl Courl ----- ---------------- CAPTION OF CASE (.nlll1 Clpllon mUlt IIIltllld In full) JOHN P. ADAMS and his wife, SANDRA L. ADAMS, Plaintiffs (plalnllff) ,-. I ~1 , 1u L"' .1 ,,; , , " -I I l2~l t ' :.J .:-"'1 " . .-. I -I , . (.;1 :'"1 INC. , Defendants ! ,( ) .., .:,J . .:r , (.. '" if\" ." . .. . t::l I <.II . n. CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, (OIflndanl) VI. N 95-5368 o. term 19_ ctvII I. SII11 ml1l1l10 IIIlllllld (I, ... plalnllrrl mollon for nlw UIII, def.ndanl'l dlmulllr to coml!lalnl,IIC,): Plaintiffs' Preliminary ObjectIons to New Matter of Defendant Clark Material Handling Company 2. Idlnlll')' counsel who wW lilli' cue: (I) fOI plalnllff: Terry S. Hyman, Esqui re (II) fOld.flndanl: Walter H. Swayze, III, Esquire for Defendant Clark William P. Douglas, Esquire for Defendant Forklifts J. I wW notify III pllllllln wrltlna within IWO dlYIlhallhll cue has beln Ullld fOllllllmenl,_ Dalld: April 4, 1996 I. 0. COUR'I' O. COMMOII 'LUI O. CUKlIRLAIID OOUMTY, '....VLVAMIA JOHN P. ADAMS and His Wife, SANDRA L. ADAMS . . . . CIVIL ACTION - LAW No. 95-5368 Civil Term vs. I I I CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. ...toM.. O. D..DDAII'1', OLUlt IIA'l'DIAL IlUDLnG OOXl'JUIY, 'l'O .UIMTU..' '..LIIlIIlUY OIJ.C'l'IOII. 'fO .n IIA'I"I'D O. D"DD~. CLARK IIA~DIAL IlAllDLJ:XCI OOIl.UV 1. Denied. Pa.R.C.P. 1029 does not apply to New Matter and, further, makes no such requirement as to New Matter. Pa.R.C.P. 1030, New Matter provides as followSI (a) Except as provided br subdivision (b), all aff rmative defenses includinq but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment privilege, release, res jUdicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the headinq "New Matter". A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading. (b) The affirmative defenses of assumption of the risk, comparative negligence and contributory negligence need not be pleaded. There is no provision that New Matter is subject to the requirements of Pa.R.C.P. 10291 to the contrary, Pa.R.C.P. 1030, . which i. controllinq, allows for the summary presentation of affirmative defenses under the heading "New Matter." A. a matter of fact, plaintiffs' argument i. so lackinq in merit, that one of the affirmative defen.e. which they are seeking to strike i. assumption of the risk which, pursuant to Pa.R.C.P. 1030 (b) need not be pleaded. The Pennsylvania Rules of civil Procedure do not aandate that where a party pleads an affirmative defen.e in New Matter, it must .tat. the material facts upon which the affiraative defense i. based. Accordingly, Plaintiff.' Preliminary objectione to Defendant's New Matter must be deni.d. 2. Admitted in part; denied in part. It is admitted that D.fendant's New Matter raises affirmative defen.e.; it i. denied that Def.ndant'. New Matter i. improper and it is further denied that defendant must .tate material fact. underlying defendant'. affirmative def.n.e.. Accordingly, Plaintiff.' Preliminary Objections must be denied. 3. Admitted in part; denied in part. Defendant admits that paragraph 23 of Defendant's New Matter, (~, Exhibit A), .tate. a. followSI The conduct of persons, parties and/or entities other than Clark Material Handling company was/were the proximate cause of plaintiffs' injuries, damages and losses as alleged. It is denied that defendant has any obligation whatsoever, pursuant to the Pennsylvania Rules of civil Procedure or the ca.e law con.truing same to identify the parties or their conduct at -2- the time of pleading an affirmative defense. Indeed, the very purpose of discovery in a civil action is to develop such facts. Therefore, plaintiffs' argument is without merit and without supporting case law. 4. Admitted in partl denied in part. It is admitted that para9raph 26 and paragraph 27 of Defendant's New Matter state as folloW81 26. The subject product may have been SUbstantially changed in its condition after it left the possession of the manufacturer. 27. The subject product may have been misused and/or abused. However, it is well settled that the doctrines of substantial changs and misuse are defenees to claims of strict product. liability under pennsylvania law. Accordingly, it is denied that defendant has an obli9ation to set forth material facts underlying the affirmative defenses at this stage of the litigation. As stated, such is the very purpose of discov.ry pursuant to the pennsylvania Rules of civil Procedure. 5. Admitted in partl denied in part. It is admitted that paragraph 38 of Defendant's New Matter states a8 folloW81 Answering defendant respectfully reserves the right to amend it New Matter. It is denied that this averment is improper. Answering defendant understands its obligations pursuant to the Rules, but upon the advice of counsel, such New Matter is included in the interest of caution in the event that further New Matter is required. -3- Defendant will comply with the Rules of civil procedure .hould .uch .ventuality occur. Accordingly, Plaintiffs' Preliminary Objections must be denied. 6. Admitted in part; denied in part. It i. admitted that plaintiffs' counsel contacted defendant'. counsel. It i. denied that defendant's counsel suggested stipulation, rather, plaintiffs' counsel suggested stipulation. Defendant's coun..l suggest.d the Rules of civil Procedure rather than stipulation or preliminary objections. Further, defendant suggests to this lIonorable Court that wh.th.r or not defendant's counsel was willing to enter into a stipulation is irrelevant to the issue of the propriety of Def.ndant'. New Matter. 7. Admitted in part; denied in part. It i. admitt.d that plaintiffs proposed an agreement; it is denied that def.ndant has an obligation to enter into such an agr....nt; plaintiff. have the devices provided by the Pennsylvania Rules of civil procedure to guide them through this lawsuit. It is further denied that defendant granted a formal extension for plaintiffs to respond to Defendant's New Matter and/or for plaintiffs' counsel to file preliminary Objections. In fact, plaintiffs' counsel's letter of February 5, 1996 specificallY state. that plaintiffs have "no written document acknowledginq our agreement concerning your filing either Amended New Matter or answers to our contention interrogatories 45 days after receiving -4- ay expert report." A. such, plaintiffs lack standing to a.sert the instant challenge to Defendant's New Matter. 8. Plaintiffs' counsel's correspondence speaks for itself. 9. Plaintiffs' counsel's correspondence speaks for itself. By way of further response, defendant has no obligation to agree to answer contention interrogatories until said contention interrogatories have been propounded; defendant's counsel cannot agree to answer interrogatories which he has not yet .een. If plaintiffs want contention interrogatories answered, they should propound them; defendant will either respond to them or, in the alternative, seek a protective Order pursuant to the Pennsylvania Rules of civil Procedure. 10. Plaintiffs' counsel'S correspondence speaks for itself. By way of further response, defendant has no obligation by rule, local rule or case law to enter into .uch an agreement. Defendant intends to conduct itself in accord with the Pennsylvania Rules of civil Procedure. WHEREFORE, defendant respectfully requests this Honorable court deny Plaintiffs' Motion to strike New Matter of Defendant, Clark Material Handling company, paragraphs 22, 23, 24, 25, 26, 27, 28, 29, 31, 34, 35, 37 and 38 and award defendant -5- .\".,.-., . costs and attorney's fee. a..ociated with defen.e of said frivolous and meritle.s motion. Re.pectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN AND GOGGIN BYI iI)~ .~WCU{Jg, nr Is/ LOUIS BELL, ESQUIik ' WALTER H. SWAYZE, III, ESQUIRE Attorney. for Defendant, Clark Material Handling company -1- CERTIFICATION OF SERVICE I hereby certify that I have served upon all peraona liated below. true and correct copy of RESPONSE OF DEFENDANT, CLARlC MATERIAL HANDLING COMPANY, TO PLAINTIFFS' PRELIMINARY OBJECTIONS TO NEW MATTER OF DEFENDANT, CLARlC MATERIAL HANDLING COMPANY in the above-captioned matter this date by regular mail. Terry S. Hyman, Eaquire ANGINO , ROVNER 4503 North Front Street Harrisburg, PA 17110 William P. Douglas, Esquire DOUGLAS, DOUGLAS , DOUGLAS 27 West High Street carlisle, PA 17013-0261 MARSHALL, DENNEHEY, WARNER COLEMAN AND GOGGIN BYI ~Q~:~"~~~EYiI~~Q~;~ Attorney for Defendant, Clark Material Handling Company DATEl April 23, 1996 i I 1 p , I I . ,,""';'''';',X.;:,",;;.>'';'.i~ ." , " ") I HEREBY CERTIFY THAT THE WITHIN IS A TRUE AND CORRECT COPY OF THE ORIGINAL FILED WITH THE COURT. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN P. ADAMS and His Wife, SANDRA L. ADAMS CIVIL ACTION - LAW vs. No. 95-5368 Civil Term CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. ANSWJlR OFD~r~~i~' CLARK MATERIAL HANDLING COMPANY. TQ ~~I~~~~S' COMPLAINT WITH NEW MATTER 1. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 1 of Plaintiffs' Complaint. Therefore, said averments are denied. 2. Admitted in part; denied in part. It is admitted only that defendant, Clark Material Handling Company, is a corporation engaged in the manufacture, design, distribution and sales of industrial material handling equipment. It is denied that answering defendant regularly sells products and otherwise conducts business in cumberland County, Pennsylvania and/or that the product at issue in this matter was designed, manufactured and sold by answering defendant. Strict proof is demanded at trial. .' .. ") 3. To the extent the averments set forth in paragraph 3 of Plaintiffs' Complaint are directed to a party other than answering defendant, no response is required under the Pennsylvania Rulee of Civil Procedure. 4. Denied. To the extent the allegations set forth in paragraph 4 of PlaintiffR' complaint constitute conclusions of law, no response is required under the Pennsylvania Rules of Civil Procedure. By way of further response, it is specifically denied that defendant, Forklifts, Inc., is an agent of defendant, Clark Material Handling company; Forklifts, Inc. and Clark Material Handling Company are separate jural entities and allegations as to any agency relationship are specifically denied. Strict proof is demanded at trial. S. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 5 of Plaintiffs' Complaint. strict proof is demanded at trial. 6. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 6 of Plaintiffs' Complaint. Accordingly, said averments are specifically denied. By way of further response, any and all allegations as to the identity of the forklift including its make and model are specifically denied as plaintiffs are left to their proofs. Strict proof is demanded at trial. 7. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 7 of Plaintiffs' Complaint. Strict proof is demanded at trial. 8. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 8 of Plaintiffs' Complaint. Strict proof is demanded at trial. 9. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 9 of Plaintiffs' Complaint, therefore, said averments are specifically denied. By way of further response, if plaintiff sustained injuries as alleged including the injuries set forth in paragraph 9 of Plaintiffs' Complaint, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. 10. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 10 of Plaintiffs' complaint, therefore, said averments are specifically denied. By way of further response, if plaintiff did sustain injuries as alleged in paragraph 10 of Plaintiffs' complaint, and/or plaintiff will incur additional medical expenses in the future, answering defendant denies any and all liability for past, present and future injuries. Strict proof is demanded at trial. -3- 11. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 11, therefore, said averments are denied. By way of further response, it is specifically denied that plaintiff has suffered a permanent diminution of his earning capacity. If plaintiff has and/or will sustain injuries, damages and/or losses as alleged, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. 12. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 12 of Plaintiffs' complaint, therefore, said averments are specifically denied. By way of further response, it is specifically denied that as a direct result of the accident described in Plaintiffs' Complaint, plaintiff incurred medical bills approaching $15,000.00 in wage losses in excess of $6,000.00. If plaintiff has and/or will sustain injuries, damages and/or losses as set forth in Plaintiffs' Complaint, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. 13. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 13 of Plaintiffs' Complaint, therefore, said averments are specifically denied. By way of further response, it is -4- --.) specifically denied that as a direct result of his injuries, plaintiff has in the past suffered acute and disabling pain and will in the future suffer pain, anxiety and suffering. If plaintiff has sustained injuries, damages and/or losses as alleged in Plaintiffs' Complaint, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. 14. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 14 of Plaintiffs' Complaint, therefore, said averments are specifically denied. By way of further response, it is specifically denied that as a direct result of plaintiff- husband's injuries, plaintiff-wife has suffered a loss of consortium, advice, society and comfort. If plaintiff-wife has suffered injuries, damages and/or losses as alleged, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. COUNT I John P. Adams and Sandra L. Adams v. Clark Material HandlinG ComDanv STRICT LIABILITY 15. Answering defendant, Clark Material Handling company, incorporates its responses to paragraphs 1 through 14, inclusive, of Plaintiffs' Complaint as though set forth at length herein. 16. Denied. To the extent the allegations set forth in paragraph 16 of Plaintiffs' complaint constitute conclusions of law, no response is required under the Pennsylvania Rules of civil Procedure. By way of further response, it is specifically -5- ~ I denied that answering defendant, Clark Material Handling Company, is strictly liable to plaintiff under S402(A) of the Restatement of Torts (Secondl for the damages alleged in Plaintiffs' Complaint which were directly and proximately caused by the forklift truck identified in Plaintiffs' Complaint. By way of further response, it is specifically denied that the forklift described in plaintiffs' Complaint in its as-marketed condition caused or contributed to the cause of the subject accident or plaintiff's injuries with regard to its design, manufacture or marketing, including but not limited to the following I (al It is specifically denied that the forklift described in Plaintiffs' Complaint malfunctioned in the absence of a reasonable secondary cause when it went into reverse without a driver present on the vehicle; (b) It is specifically denied that the subject forklift described in plaintiffs' Complaint was defective in any manner whatsoever in failing to have any operator presence controls on the forkliftl By way of further response, the forklift is equipped with a hand operated parking brake and an ignition as well as warnings which make the forklift safe for its intended usel (c) It is specifically denied that the subject forklift described in Plaintiffs' complaint was defective in any manner whatsoever with respect to constructing the forward/neutral/reverse shift lever, linkage and hydraulic -6- OJ control system without separate, distinct detents for forward, reverse and neutral; (d) It is specifically denied that the subject forklift described in Plaintiffs' Complaint was defective in any manner whatsoever including constructing the shift lever, shift linkage and hydraulic control system in such a manner that the operator could place the vehicle in what appeared to be neutral position when the vehicle, in fact, was in reverse; (e) It is specifically denied that the subject forklift described in Plaintiffs' Complaint was defective in any manner whatsoever including designing and constructing the shift lever, shift linkage and hydraulic control system which would allow the hydraulic control system to operate in such a manner that the hydraulic cylinder could receive hydraulic fluid in the reverse position at a slow rate, resulting in a delayed movement of the vehicle in the reverse direction; (f) It is specifically denied that the subject forklift described in Plaintiffs' Complaint was defective in any manner whatsoever including failing to provide a shift system which had distinct positions for forward, neucral and reverse; (g) It is specifically denied that the subject forklift described in Plaintiffs' Complaint was defective in any manner whatsoever including failing to provide a control system in which the shift lever, shift linkage or hydraulic control system could be held in the neutral position; -7- ') (h) It l.s specifically denied that the subject forklift described in Plaintiffs' complaint was defective in any manner whatsoever including failing to provide adequate warnings to appraise the operator that the vehicle could, or did have a tendency to, move in a reverse direction after a period of delay and while the operator could be off the vehicle I (i) It is specifically denied that the subject forklift was defective in any manner whatsoever in failing to provide accurate instructions regarding the need to adjust the shift linkage, shift lever and/or the hydraulic control system to avoid delayed reverse movement of the lift truck without a rider present I (j) It is specifically denied that the subj ect forklift described in Plaintiffs' complaint was defective in any manner whatsoever including failing to provide adequate operator instructions regarding the placement of the shift lever in the neutral or reverse position and the consequence of failing to do so accurately; (k) It is specifically denied that the subject described in Plaintiffs' Complaint was defective in any manner whatsoever including designing the system such that there was or could be too much free play in the neutral reverse position; (1) It is specifically denied that the subject forklift was defective in any manner whatsoever including utilizing an emergency brake system which could and did regularly -6- I 'I come out of adjustment or could be maladjusted by an individual operator, rather than utilizing a fixed system; (m) It is specifically denied that the subject product was defective in any manner whatsoever including failing to utilize and incorporate an automatic parking brake on to the vehicle or on to the vehicle's pedals; (n) It is specifically denied that the subject product was defective in any manner whatsoever, and it is specifically denied that the vehicle was unsafe in any manner whatsoever; To the contrary, the subject product, as marketed, contained every element necessary to make it safe for its intended use and was safe for its intended purpose. Strict proof of the foregoing allegations is demanded at trial. WHEREFORE, answering defendant requests this Honorable Court enter judgment in favor of defendant, Clark Material Handling Company, and against plaintiffs, together with costs and attorney's fees. COUNT II John P. Adam. and Sandra Adams v. Forklifts. Inc. STRICT LIABILITY AND NEGLIGBNCE 17. Answering defendant, Clark Material Handling Company, incorporates by reference its responses to paragraphs 1 through 16, inclusive, of Plaintiffs' Complaint as though set forth at length herein. 18. The allegations set forth in paragraph 18 pertain to a party other than answering defendant, therefore, no response is required under the Pennsylvania Rules of Civil Procedure. -9- .--. , 19. The allegations set forth in paragraph 19 pertain to a party other than answering defendant, therefore, no response is required under the Pennsylvania Rules of civil Procedure. 20(a-f), inclusive. The allegations set forth in paragraph 20 pertain to a party other than answering defendant, therefore, no response is required under the Pennsylvania Rules of Civil Procedure. 21. The allegations set forth in paragraph 18 pertain to a party other than answering defendant, therefore, no response is required under the Pennsylvania Rules of civil Procedure. WHEREFORE, answering defendant requests this Honorable Court enter judgment in favor of defendant, Clark Material Handling Company, and against plaintiffs, together with costs and attorney's fees. NEW MATTER 22. Plaintiffs' Complaint fails to state a cause of action upon which relief may be granted. 23. The conduct of persons, parties and/or entities other than Clark Material Handling company was/were the proximate cause of plaintiffs' injuries, damages and losses as alleged. 24. The conduct of persons, parties and/or entities other than Clark Material Handling company may have been intervening, superseding causes of plaintiffs' injuries, damages and losses as alleged. 25. The conduct of the plaintiff was the sole cause of injuries, damages and losses, if any. -10- 26. The subject product may have been substantially changed in its condition after it left the possession of the manufacturer. 27. The subject product may have been misused and/or abused. 28. Plaintiff assumed the risk of a known danger. 29. Strict products liability is inapplicable as a matter of law. 30. The subject product, as designed, manufactured and marketed, contained every element necessary to make it safe for its reasonably foreseeable and intended uses. 31. As a matter of law and social policy, the subject product was not unreasonably dangerous. 32. The subject forklift was equipped with a parking brake which, if properly maintained and used by plaintiff, would have prevented plaintiff's injuries. 33. The product identified in Plaintiff's Complaint is not a product of defendant, Clark Material Handling company. 34. The product contained all necessary warnings, instructions and directions. 35. The product, as marketed with warnings, instructions and directions was safe for its intended use inasmuch as if said warnings are followed, the product is safe for its intended use. 36. Forklifts, Inc. is not an agent of answering defendant and, therefore, the pleading of agency relationship therefore is improper as a matter of law and fact. -11- 37. Delay damages are inapplicable and unconstitutional. 38. Answering defendant respectfully reserves the right to amend its New Matter. WHEREFORE, answering defendant requests this Honorable Court enter judgment in favor of defendant, Clark Material Handling Company, and against plaintiffs, together with costs and attorney's fees. MARSHALL, DENNEHEY, WARNER, COL~MAN & .OGGIN BY: , E QUIRE WALTER H. SWAYZE. III. BSQUIHB Attorneys for Defendant, Clark Material Handling Company 1845 Walnut Street Philadelphia, PA 19103-4797 (215) 575-2600 -1- .., VERIFICATION I, DAVID C. FIELD, declare that I am house counsel for Clark Material Handling Company, and that I am executing the foregoing Answer of Defendant, Clark Material Handling company, to Plaintiffs' Complaint with New Matter for and on behalf of said Defendant, and that I am duly authorized to do so. That the matters stated in the foregoing responses are not within my personal knowledge and I am informed that there is no officer of Defendant who has personal knowledge of such matters; that the facts stated in said responses have been assembled by authorized employees and counsel of Defendant, and I am informed by said counsel that the facts stated in said responses are true. I declare, under penalty of perjury, under the laws of the State of Kentucky, that the foregoing Executed this the ~ day of Lexington, Kentucky. is true and correct. J\JI~ , 1995 at :::-~.;p~~DLIN' DAVID C. F~D COMPANY STATE OF KENTUCKY COUNTY OF FAYETTE SUBSCRIBED AND SWORN to before me by DAVID C. FIELD attorney for Clark Material Handling company, this ~Lday of 1lI~~~ 1995. My Commission ~L Not Y Public State-at-Large, :") IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN P. ADAMS and His Wife, SANDRA L. ADAMS CIVIL ACTION - LAW No. 95-5368 Civil Term vs. CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. CERTIFICATION OF SERVICE I hereby certify that I have served the Answer to Plaintiff's Complaint with New Matter upon all parties as listed below on this date. Terry S. Hyman, Esquire 4503 North Front Street Harrisburg, PA 17110 William P. Douglas, Esquire DOUGLAS, DOUGLAS & DOUGLAS 27 West High Street P. O. Box 261 Carlisle, PA 17013-0261 , WARNER, - .-. - Y , III o Defendant, rial Handling 1845 Walnut Street philadelphia, PA 19103 (215) 575-2823 DATED. November 27, 1995 ~;.4'''''''''='''''" ..c...... h'.~i':,',c..-."<"..,,_. - ,. ,....~...... .... " II '1'1. OOVR'I' O. OOKKOI .L1A8 O. CUKlIaLAMD OOUNTY, .....YLVAMIA JOHN P. ADAMS and His Wife, SANDRA L. ADAMS . . CIVIL ACTION - LAW No. 95-5368 civil Term I VS. I CLARK MATERIAL HANDLING I COMPANY and FORKLIFTS, INC. I a.D.. AND NOW, this day of , 19516, it i. hereby ORDERED and DECREED that Plaintiffs' preliminary Objections to New Matter of Defendant, Clark Material Handling coapany, paragraphs 22, 23, 24, 25, 26, 27, 28, 251, 31, 34, 35, 37 and 38 are DENIED. BY THE COURTI J. .- 1..0 c.. ~ I .. I' I' ~~~ ,I." r , I I.: .oJ p.' ~ ;~ , . , -'j '. j (.. " r.' ..>. [: I,,; I .j I' , " , , , , JOHN P. ADAMS and hie wife, SANDRA L. ADAMS, plaintiffs I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I I CIVIL ACTION - LAW I I NO. 95-5368 CIVIL TERM I I v. CLARK MATERIAL HANDLING COMPANY and FORRLIFTS, INC., Defendants AND NOW, ORO.. -f (I J . ~ this ~ day of A,,----' --.. , 1996, upon consideration of plaintiffS' Motion to Amend the complaint pursuant to Pa.R.C.P. 1033, said Motion is hereby GRANTED and Plaintiffs are given leave to file the Amended Complaint. ~n:"I' F- ,f/~- l J. Vlr-Ni\1ASNN3d Ut Ir''''1'') nl '1'11-~"",,_*\ ,'t.". ., 11-./ 911llWV 9-thll'96 AUVJ.C1KJ;-Uv.::.l ~: 11 ::0 3Ol:I:IO-G.:l"!U JOHN P. ADAMS and his wife, SANDRA L. ADAMS, plaintiffs I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I I CIVIL ACTION - LAW I I NO. 95-5368 CIVIL TERM I I I v. CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC., Defendants ''''111'1'1'''' 110'1'10. 'l'O AllBIID '1'BII CO.'LAIII'l' ,UR'UaMT 'l'O .a...O... 1033 1. plaintiffs initiated this action by a complaint which, in paragraphs 1 through 14 , allege the material facts upon which (Complaint attached as Plaintiffs' cause of action was based. Exhibit "A"). 2. The Complaint specifically alleges that John Adams was injured when a Clark forklift truck, while parked in neutral without a driver present, suddenly engaged itself into revers., moving 20 feet and crushing Plaintiff's pelvis between the back of the truck and a stationary roller table, fracturing his peliis and severing his urethra. (Complaint, paragraphs 7 and 8). 3. Although not required to plead a legal theory in the complaint, DelConte v. Stefaniok, 268 Pa. super. 572, 408 A.2d 1151 (1979), Plaintiff did in paragraph 16 plead that the material facts gave rise to a 402A strict liability claim for the defective design of the forklift. 4. Based upon precisely the same material facts, Plaintiffs now wish to amend the Complaint to include recovery for negligent 9081 1 IPJQ de.ign of the clark forklift truck for preci.ely the same problems outlined in paragraph 16 of the complaint. 5. Plaintiffs' amendment of the complaint to include reoovery for negligent design as well a. defective de.ign would not prejUdice Defendant Clark in any fashion, as it does not add a single, material fact to the complaint, but rather simply adds additional elements of proof for Plaintiff based on already alleged facts of which Defendant Clark has full notice. 6. Further, no depo.itione have been taken in the case and, the parties are only at the beginning of documentary discovery. 7. The Amended complaint, attached hereto a. Exhibit "B", simply formalizes in the pleadings a theory of recovery which is derived from, and inCluded in, the original complaint. WHEREFORE, Plaintiffs pray YQur Honorable court will permit plaintiff. to amend the complaint to include allegations of n.gligent deeign in addition to defective de.ign based upon the fact. already alleged therein. ANGINO , ROVNER, P.C. rry S I.D. 4503 th Front street Harrisburg PA 17110 (717) 238-6791 counsel for plaintiff DATED I 5/15/96 2 CERTIFICATE OF SERVICE AND NOW, this 15th day of May, 19516, I, Pamela J. Gillespie, an employee of Angino , Rovner, P.c., do hereby certify that I have served a true and correct copy of the .UIII'1'Ir..' KO'l'IO. '1'0 AIIIMD 'l'B1 OOK'UIII'I' .UlIUAII'1' '1'0 .a...C... 1033 in the united States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: walter H. swayze, III, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN , GOGGIN 1845 Walnut street Philadelphia PA 19103-4797 Attorneys for Defendant Clark Material Handling company William P. Douglas, Esquire DOUGLAS, DOUGLAS , DOUGLAS P.O. Box 261 27 West High street carlisle PA 17013-0261 Attorneys for Defendant Forklifts, Inc. . ~.~ . __ ,~ \CJ h "- Q PamelW J. G l1es~ 1\\(':: fi' .. , " JOHN P. ADAMS, and His Wife, SANDRA L. ADAMS, plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. (}/.- a ( t1 _A 7() ~ 53&g .{AL.t..t,. ;::0tAAI"- - v. I I I I I I I I I '-.; CLARK MATERIAL HANDLING COMPANY AND rORl( LIFTS, INC. Defendants (-.... JURY TRIAL DEMANDED 1-- NOTICE : YOU HAVE BEEN SUED IN COURT. If you wish to defend against '-'I the claims set forth in the following pages, you must take action within twenty (20) day. after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your datenses or Objections to the claims set fo~th 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 aoney claimed in the complaint or for any other claim or relief requested by the plaintiff. You may 10.. money or property or other rights important to you. YOU SHOULD TAJ(E 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 BEWW TO rIND OUT WHERE YOU CAN GET LEGAL HELP. court Administrator, 4th Fl. cumberland county courthouse One courthouse square carliele, PA 17013 240-6200 .. , I' NOTICIA La han de.andado a ustad en la corte. si u.ted quiere defendeue da estas demandas expuastas en las paqinas siquiente., ustad tiene vianta (30) dias de plazo al partir de la facha da la de.anda Y la not1ficacion. Ustad deba prasenter una apariancia escrita 0 en persona 0 por abogado Y archivar an la corta en foraa a.crita .us def_"sas 0 au. objectinnes alas demendes en contra da .u persona. Saa avisado que si ulted no sa defiende, la corte tomara .adidas Y pueda entrar una ordan contra ustad sin previo aviso 0 notificacion Y por cualquier quaja 0 alivio que es padido en la peticion da da.anda. Usted puede perdar dinero 0 sus propiedade. 0 otros derecho. importantas para usted. LLEVE BSTA DEMANDA A UN ABODAGO INMEDIATAMENTA.. SI NO TI!NE ABODAGO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A IA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE pUEDE CONSEGUIR ASISTENCIA LEGAL. court Administrator, 4th Fl. cumberland county courthouse One courthousa square cerlisle, PA 17013 240-6200 , . . JOHN P. ADAMS, and His Wife, SANDRA L. ADAMS, Plaintiffs I IN THE COURT OF COMMON PLEAS I CUMBERLAND COUNTY, PENNSYLVANIA I I CIVIL ACTION - LAW I NO. I I I I JURY TRIAL DEMANDED v. CLARX MATERIAL HANDLING COMPANY AND FORKLIFTS, INC. Defendants COMPLAINT 1. plaintiffs John P. and sandra L. Adam. are adults residing in Mechanic.burg, cumb.rland county, pennsylvania. 2. D.f.ndant Clark Material Handling company i. a profit- making corporation enqaged in the manufacture, d..iqn, distribution and .ale. of forklift trucks which requlBrly ..11. products and otherwi.e conduct. busin.ss in cumb.rland county, pennsylvania. 3. Defendant Forklifts, Inc. is a corporation .pecializing in the .ale, di.tribution and s.rvicing of Clark fork lift truck. whose main office i. located in camp Hill, cumb.rland County, Pennsylvania. 4. Fork Lift., Ino. at all ti... relative to this ca.. was an authoriz.d dealer and agent of Defendant Cluk Material Handling company. 5. On March 2, 15194, plaintiff John Adams was engaged in his normal occupation a. an a...mbly line work.r at Valk ManUfacturing located on carli.l. pik., cumberland county, pennsylvania. 6. As part of his job, Mr. Adam. found it necessary to use a Clark forklift, model C500-S80, type LP, .erial numb.r 685- I. : , . 00287950KOF, ID number AU 1537 industrial truck '4410804. 7. At that ti.e and place Mr. Adam. used the lift truck to place a large, heavy snowplow blade on a roller table. Mr. Adams then 1rove the forklift truck to an area ecross from the table, got off of the truck and placed it in neutral. 8. After walking over to the work area at the roller table, a distance of approximately 20 feet, Mr. Adams turned around to .ee the driverle.. fork lift truck coming towards him in reveree. Having no time to avoid the oncoming vehiole, Mr. Adam. got caught between the heavy counterweight on the reer of the Olark lift truck and the stationary roller table, fracturing his pelvis and .evering hi. urethra. 51. As a direct re.ult of his accident, Mr. Adam. was rulhed to Holy spirit Hospital where he was found to have a severely lacerated urethra and evulsion of the prostate, multiple fractures of the pelvis and pubic bones, and a hematoma of the pelvis. 10. Ae a direct result of his injuries, Mr. Adams underwent significant medical treatment, inclUding surgical repair of his .evered urethra, for which he incurred .edical expen.es and may well incur additional medical expenses in the future. 11. As a direct result of his injuries, Mr. Adam. wal unable to work for a period in excess of four month. and has suffered a permanent diminution of his earning capacity. 2 . . 12. A. a direct r..ult of hi. accid.nt, Mr. Adam. incurred ..dical bill. in approaching $15,000 and wage 10.... in axce.. of $6,000. 13. A. ~ direct re.ult of hi. injurie., Mr. Adam. has in the pa.t .uffered acute and disabling pain and will in 1:he future, .uffer pain, anxi.ty and .ufferin;. 14. A. a direct re.ult of her hu.band'. injuri.., Plaintiff Sandra L. Adam. ha. .uffered a 10.. of con.ortium, advice, .ociety and comfort. COUNT I JOHN P. ADAMS AND SANDRA L. ADAMS V. CLARK MATERIAL HANDLING COMPANY STRICT LIA.BIL'I'l'Y ; 15. Paragraph. 1 throu;h 14 ar. incorporated her. in by reference. 16. Def.ndant Clark Material Handlin; Company is atrictly liable to Plaintiff under 1402A of the R..tat_.nt of Tort. (S.cond) for the damage. alleged herein which were directly and proximally cau.ed by. the Clark forklift truck id.ntified above, which wa. defective inl (a) malfunctionin; in the ab..nce of a rea.onabl. .econdary cau.e when it went into rever.e without a driver pre.ent on the vehicl., (b) failin9 1:0 have any op.rator pre.ence control. on the forklift, 3 . . (c) constructinQ the forward/neutral/rever.e shift lever, linkaQe and hydraulic control .ystem without separate, distinct detents for for~ard, reverse Lnd neutral, (d) construuting the shift lever, shift linkaQe and hydraulic control syste. in a such a .anner that the operator could place the vehicle in what appeared to be the neutral position when the vehicle, in fact, was in reverse, (e) de.iQning and constructing the shift lever, shift linkage and hydra'llic control system which would alloW the hydraulic control system in such a .anner that the hydraulic cylinder could receive hydraulic fluid in the reV.r.e position at a sloW rate, resulting in a delayed movement of the vehicle in the I rever.e direction, (f) failing to provide a shUt system which had distinct position. for forward, neutral, and rever.e, (g) failing to provide a control sy.te. in which the shift lever, shift linkage or hydraulic control sy.tem could be held in the neutral position' (h) failing to provide adequate warning. to appraise the operator that the vehicle could, or did have a tendency to, .ove in a reverse direction after a period of delay and while the operator could be off of the vehicle, (i) failing to provide accurate instructions regarding 4 . . the need to adjuet the shift linkage, shift lever and/or the hydraulic control syste. to avoid delayed rever.e move.ent of the lift truck without a ridar pre.er.t, (j) failing to provide adequate operator instruction. regarding the place.ent of the shift lever in the neutral or rever.e position and the con.equence of failing to do so accurately, (k) de.igning the sy.te. such that there was or could be too .uch free play in the neutral-reverse positions, (1) utilizing an e..rgency brake syste. which could and did regularly come out of adjust.ent or could be aaladjusted by an individual operator, rather then utilizing a fixed syste., (.) failing to utilize and incorporate an auto.aUc parking braka on to the vehicle or on to the vehicle's pedals, (n) otherwise failing to .ake the vehicle safe for its intended purpo.e. WHEREFORE, Plaintiff pray. for judgment against Def~ndant in an a.ount in excess of Twenty Five Thousand ($25,000) Dollars, exclusive of interest and costs, and in exce.s of any juri.dictional a.ount requiring co.pulsory arbitration. COUNT II JOHN P. ADAMS AND SANDRA L. ADAMS V. FORKLIFTS, INC. STRICT LIABILITY AND NEGLIGENCE 17. Paragraphs 1 through 16 end Count I are incorporated by , . . 5 , . :1 I. referenoe. ... 18. Defendant forklifts, Inc. as the seller of the fork lift involved in the incident is .trictly lbble under 402A of the aestate.ent of Tort. for the defects allayed in paragraph 16 above and incorporated herein by reference. 19. Defendant forklifts, Inc., by contract, regularly conducted planned maintenance as well a. repair. of the subject forklift. 20. Defendant Fork Lifts, Inc. is Hable to Plaintiff for it. negligence ins (a) failing to inapect and detect excess free play and maladjust.ents in the forward/neutral/reverse shift lever, .hift linkave and/or hydraulic control syste. of the subject lift truck, (b) failing to properly adjust the free play in the neutral reverse positions of the shift lever, linkave and hydraulic control syste., (c) failing to alert, instruct or warn Plaintiff'a ..ployer or Plaintiff John Ada.s of the ne.d to take precautions vith the placement of the vehicle's shift mechaniam in neutral or I I f .. " ~ reverse, (d) failing to properly edjust the e.ergency/parking brake on the vehiCle, (e) failing to alert, adviae, inatruct or warn 6 , . Plaintiff'. ellployer or plaintiff of the danger that delayed r.vers. aovellent could occur when no operator vas in the vehicle, (f) failing to inspect or edjust the for.t lift so a. to prevent it from engaging in the reverse po.ition while an operator vas not pr...nt in the seat, 21. Defendant is also liable under the Doctrine of Rei Ipsa Loquitur as Defendant Forklift. had exclusive control over the ..int.nanoe and adju.tllenta of the aubject forklift shift .echanism, and the vehicle could only 90 into rever.. without a rider present if Defendant had been negligent in its maintenance of the fork lift truck. WHEREFORE, plaintiff pray. for jud;aent against D.fendant in ~ an allount in exce.s of Twenty Five Thousand ($25,000) Dollar., : exclusive of interelt and costs, and in eXces. of any jurisdictional amount requiring cOllpulsory arbitration. ANGINO . ROVNER, P.C. T I. 450 rront str.et Harrisburg, PA 17110 (717) 238-67511 coun.el for plaintiff 7 I' . I. VERIFICATION .' f I, JOHN P. ADAMS, do hereby .wear and affirm that the facts set forth in the foregoing document are true and correct to the best of illY knowledge, information and belief. I understand that thi. verification is .ade subject to the penaltie. of 18 Pa.C.P. I 4904, relating to un.worn fal.ification to authorities. L WITNESS: -11711'J1lj, m /d_"JJ.P. Dated I /l>/Q/9S ~'14 P ~e? -e-- ;/ JOHN P. ADAMS I. ; :+.-c.,.,'C?c.:..'.'" i JOHN P. ADAMS, and His Wife, SANDRA L. ADAMS, plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. v. cLARK MATERIAL HANDLING COMPANY AND FORK LIFTS, INC. Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. YoU are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. court Administrator, 4th Fl. cumberland county courthouse one courthouse square carlisle, PA 17013 240-6200 ~f._.. NOTICIA Le han demandado a usted en la corte. si usted quiere defendene de estas demandas expuestas en las paginas siquientes, usted tiene viente (30) diaa de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado Y archivar en la corte en forma e8crita sus defensas 0 aus objectiones alas demanda8 en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra U8ted sin previo aviso 0 notificacion Y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 eus propiedade8 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTA. SI NO TIENE ABODAGO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR CONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Court Administrator, 4th Fl. cumberland county courthouse One Courthouse Square carlisle, PA 17013 240-6200 JOHN P. ADAMS, and His Wife, SANDRA L. ADAMS, plaintiffS I IN THE COURT OF COMMON PLEAS I CUMBERLAND COUNTY, PENNSYLVANIA I I CIVIL ACTION - LAW I NO. I I I I JURY TRIAL DEMANDED v. cLARK MATERIAL HANDLING COMPANY AND FORKLIFTS, INC. Defendants ....IID.D COIlIlLAIII'1' 1. plaintiffs John P. and Sandra L. Adams are adults residing in Mechaniosburg, cumberland county, pennsylvania. 2. Defendant Clark Material Handling company is a profit- making corporation engaged in the manufacture, de8ign, dietribution and sales of forklift trucks which regularly sells prOducts and otherwise conducts business in cumberland county, pennsylvania. 3. Defendant Forklifts, Inc. is a corporation specializing in the sale, distribution and servicing of Clark fork lift trucks whose main office is located at 3925 Trindle Road, camp Hill, cumberland county, pennsylvania. 4. Fork Lifts, Inc. at all times relative to this ca8e was an authorized dealer and agent of Defendant Clark Material Handling company. 761SJIPJO 5. On March 2, 1994, plaintiff John Adams was engaged in his normal occupation as an assembly line worker at Valk ManUfacturing located on carlisle Pike, cumberland County, Pennsylvania. 6. As part of his job, Mr. Adams found it necessary to uss a Clark forklift, model C500-SBO, type LP, serial number 685- 00287950ROF, 10 number AU 1537 industrial truck '4410804. 7. At that time and place Mr. Adams used the lift truck to place a large, heavy snowplow blade on a roller table. Mr. Adams then drove the forklift truck to an area across from the table, got off of the truck, and placed it in neutral. 8. After walking over to the work area at the roller table, a distance of approximately 20 feet, Mr. Adams turned around to see the driverless fork lift truck coming towards him in reverse. Having no time to avoid the oncoming vehicle, Mr. Adams got caught between the heavy counterweight on the rear of the Clark lift truck and the stationary roller table, fracturing his pelvis and severing hi. urethra. 9. As a direct result of his accident, Mr. Adams was rushed to Holy spirit Hospital where he was found to have a severely lacerated urethra and evulsion of the prostate, multiple fraotures of the pelvis and pubic bones, and a hematoma of the pelvis. 2 10. As a direot result of his injuries, Mr. Adams underwent signifioant medical treatment, including surgical repair of his severed urethra, for which he incurred medical expensee and may well incur additional medical expenses in the future. 11. As a direot result of his injuries, Mr. Adams was unable to work for a period in excess of four months and has suffered a permanent diminution of his earning capacity. 12. As a direot result of hie accident, Mr. Adams incurred medical bills approaching $15,000 and wage losses in excess of $6,000. 13. As a direot result of his injuries, Mr. Adams has in the put 8uffered acute and disabling pain and will in the future, suffer pain, anxiety and SUffering. 14. As a direot result of her husband's injuries, Plaintiff Sandra L. Adams hbs suffered a 10S8 of consortium, advice, society and comfort. OOUll'1' I Jon .. ADAMI aJlD aAlmllA L. ADAlIa V. OLARK MA'l'aaIAL IlJUlDLIMG OOM'AMY 8'1'110'1' LIAlILI~Y aJlD ..GLIG..O. 15. Paragraphs 1 through 14 are incorporated herein by reference. 3 \' 16. Defendant Clark Material Handling company ie strictly liable to plaintiff under 14021. of the Restatement (Second) of Torts and under common law negligence for the damages alleged herein which were directly and proximallY caused by the clark forklift truck identified above, which was defective and negligently designed inl (a) malfunctioning in the absence of a reasonable seoondary cause when it went into reverse without a driver present on the vehicle, (b) failing to have any operator presence contro18 on the forklift, (c) constructing the forward/neutral/revers. shift lever, linkage and hydraulic control system without separate, distinct detents for forward, reverse and neutral, (d) constructing the shift lever, shift linkago and hydraulic control system in a such a manner that the operator could place the vehicle in what appeared to be the neutral position when the vehicle, in fact, was in reverse, (e) designing and construoting the shift lever, shift linkage and hydraulic control system which would alloW the hydraulic control system in suoh a manner that the hydraulic oylinder could receive hydraulic fluid in the reverse position at a slow rate, resulting in a delayed movement of the vehicle in the reverse direction, 4 (f) failing to provide a shift system which had distinct positions for forward, neutral, and reverse, (g) failing to provide a control system in which the shift lever, shift linkage or hydraulic control system could be held in the neutral position, (h) failing to provide adequate warnings to Appraise the operator that the vehicle could, or did have a tendency to, move in a reverse direction after a period of delay and while the operator could be off of the vehicle, (i) failing to provide accurate instructions regarding the need to adjust the shift linkage, shift lever and/or the hydraulio control eystem to avoid delayed reverse movement of the lift truck without a rider present' (j) failing to provide adequate operator instructions regarding the placement of the shift lever in the neutral or reverse position and the consequence of failing to do so accuratelY' (k) designing the system such that there was or could be too much free play in the neutral-reverse positions' (1) utilizing an emergency brake system which could and did regularly come out of adjustment or could be maladjusted by an individual operator, rather than utilizing a fixed system' (m) failing to utilize and incorporate an automatic parking brake on to the vehicle or on to the vehicle's pedals' 5 (n) otherwise failing to make the vehicle safe for its intended purpose. WHEREFORE, plaintiff prays for judgment against Defendant in an amount in excess of Twenty Five Thousand ($25,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. OOUll'l' II JOD .. ADAlIa AMO IAMOD L. ADAlIa v. roaILIr'l'., 1.0. l'I'aIcr LIaBILI~Y AMO ..GLIG..O. 17. Paragraphs 1 through 16 and Count I are incorporated by reference. 18. Defendant Forklifts, Inc. a8 the seller of the fork lift involved in the incident io striotly liable under 402A of the Restatement of Tort8 for the defects alleged in paragraph 16 above and incorporated herein by reference. 19. Defendant Forklifts, Inc., by contract, regularly conducted planned maintenance as well as repairs of the subject forkl ift . 20. Defendant Fork Lifts, Inc. is liable to plaintiff for its negligence inl (a) failing to inspect and detect excess free play and maladjustments in the forward/neutral/reverse shift lever, shift linkage and/or hydraulic control system of the subject lift truck, 6 (b) failing to properly adjust the free play in the neutral reverse positions of the shift lever, linkage and hydraulic control system, (c) failing to alert, instruct or warn Plaintiff's employer or Plaintiff John Adams of the need to take precautions with the placement of the vehicle's shift mechanism in neutral or reverse, (d) failing to properly adjust the emergency/parking brake on the vehicle, (e) failing to alert, advise, instruot or warn Plaintiff's employer or Plaintiff of the danger that delayed reverse movement could occur when no operator was in the vehicle, (f) failing to inspect or adjust the fork lift so ae to prevent it from engaging in the reverse position while an operator was not present in the seat, 21. Defendant is also liable under the Doctrine of Res Ipsa Loquitur as Defendant Forklifts had exclusive control over the maintenance and adjustments of the subject forklift shift mechanism, and the vehicle could only go into reverse without a rider present if Defendant had been negligent in its maintenance of the fork lift truck. WHEREFORE, Plaintiff prays for judgment against Defendant in an amount in excess of Twenty Five Thousand ($25,000) Dollars, 7 . I. . exclusive of interest and ooets, and in excess of any juri8dictional amount requiring compulsory arbitration. ANGINO , ROVNER, P.C. (':::: er yman, ESqu re I. . N 36807 4 0 . Front street Harrisburg, PA 17110 (717) 238-6791 counsel for Plaintiff DATED I 5/15/96 B JOHN P. ADAMS, and His Wife, SANDRA L. ADAMS, plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. 95-5368 CIVIL TERM CLARJ( MATERIAL HANDLING COMPANY AND FORK LIFTS, INC. Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against ths clai.s set forth in the following pages, you must take action within twenty (20) days aftsr this COllplaint and Notice ars served, by entsring a writtsn appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claills sst forth against you. You are warned that if you fail to do so the case lIay proceed without you and a judgment may be entersd against you by the Court without further notice for any aoney claiaed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator, 4th Fl. cumberland county Courthouse One Courthouse Square Carlisle, PA 17013 240-6200 JOHN P. ADM~, and Hi. Wife, SANDRA L. ADAMS, Plllintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. . . . . CLARlC MATERIAL HANDLING COMPANY AND FORlC LIFTS, INC. Defendant. I NO. 95-5368 CIVIL TERM I I I JURY TRIAL DEMANDED NOTICIA La han demandado a usted en la corte. Si usted quiere defenderse de eatas demandas expuesta. en laa paqinaa siquientes, usted tiene viente (30) dia. de plazo al partir de la fecha de la de.anda y la notificacion. U.ted debe preaentar una apariencia escrita 0 en peraona 0 por aboqado y archivar en la corte en forma escrita sus defensas 0 sua objectiones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte to.ara .edidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que ea pedido en la petie ion de demanda. Usted puede perder dinero 0 sua propiedades 0 otros derechoa importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTA. SI NO TIENE ABODAGO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAHE POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR CONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Court Administrator, 4th Fl. cumberland County Courthouse One Courthouse square Carlisle, PA 17013 240-6200 JOHN P. ADAMS, and His Wife, SANDRA L. ADAMS, Plaintiffs I IN THE COURT OF COMMON PLEAS I CUMBERLAND COUNTY, PENNSYLVANIA I I CIVIL ACTION - LAW I I NO. 95-5368 CIVIL TERM I I I JURY TRIAL DEMANDED v. CLARK MATERIAL HANDLING COMPANY AND FORKLIFTS, INC. Defendants IllleMDaD COIIPLAIII'l' 1. Plaintiffs John P. and Sandra L. Adams are adults residinq in Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant Clark Material Handlinq Company is a profit- .akinq corporation engaqed in the manufacture, design, distribution and sales of forklift trucks which regularly sells products and otherwise conducts business in Cumberland county, Pennsylvania. 3. Defendant Forklifts, Inc. is a corporation specializing in the sale, distribution and ssrvicing of Clark fork lift trucks whose aain office is located at 3925 Trindle Road, Camp Hill, cuaberland County, Pennsylvania. 4. Fork Lifts, Inc. at all times relative to this case was an authoriled dealer and agent of Defendant Clark Material Handling Coapany. 76153ma 5. On March 2, 1994, Plaintiff John Adams was engaged in his nor.al occupation as an assembly line worker at Valk ManUfacturing located on Carlisle Pike, Cumberland county, Pennsylvania. 6. As part of his job, Mr. Adams found it necessary to use a Clark forklift, model C500-S80, type LP, serial number 685- 00287950KOF, ID number AU 1537 industrial truck '4410804. 7. At that time and place Mr. Adams used the lift truck to place a large, heavy snowplow blade on a roller table. Mr. Adams then drove the forklift truck to an area across from the table, got off of the truck, and placed it in neutral. 8. After walking over to the work area at the roller table, a distance of approxiaately 20 feet, Mr. Adams turned around to see the driverless fork lift truck coming towards him in reverse. Having no ti.e to avoid the oncoming vehicle, Hr. Adams got caught between the heavy counterweight on the rear of the Clark lift truck and the stationary roller table, fracturing his pelvis and severing his urethra. 51. As a direct result of his accident, Mr. Adams was rushed to Holy Spirit Hospital where he was found to have a severely lacerated urethra and evulsion of the prostate, multiple fractures of the pelvis and pubic bones, and a hematoma of the pelvis. 2 10. As a direct result of his injuries, Mr. Adams underwent significant .edical treatment, including surgical repair of his severed urethra, for which he incurred medical expenses and may well incur additional medical expenses in the future. 11. As a direct result of his injuries, Mr. Adams was unable to work for a period in excess of four months and has suffered a permanent diainution of his earning capacity. 12. As a direct result of his accident, Mr. Adams incurred .edical bills approaChing $15,000 and wage losses in excess of $6,000. 13. As a direct result of his injuries, Mr. Adams has in the past suffered acute and disabling pain and will in the future, suffer pain, anxiety and suffering. 14. As a direct result of her husband'. injuries, plaintiff Sandra L. Adams has suffered a loss of consortium, advice, society and coafort. COUll'1' I JOB .. 1lWI' UD .UDD L. AIWI' 'I. OLUE D'I'laUL UMDLIMG co.,an .'I'aIM LI"ILI~Y AMD ..GLIG..O. 15. Paragraphs 1 through 14 are incorporated herein by reference. 3 16. Defendant Clark Material Handling Company is strictly liable to plaintiff under 1402A of the Restatement (Second) of Torts and under common law negligence for the damages alleged herein which were directly and proximally caused by the Clark forklift truck identified above, which was defective and negligentlY designed in: (a) aalfunctioning in the absence of a reasonable secondary cause when it went into reverse without a driver present on the vehiCle, (b) failing to have any operator presence controls on the forklift, (c) constructing the forward/neutral/reverse shift lever, linkage and hydraulic control system without separate, distinct detents for forward, reverse and neutral, (d) constructing the shift lever, shift linkage and hydraulic control system in a such a manner that the operator could place the vehicle in what appeared to be the neutral position when the vehicle, in fact, was in reverse, (e) designing and constructing the shift lever, shift linkage and hydraulic control eystem which would allow the hydraulic control system in such a manner that the hydraulic cylinder could receive hydraulic fluid in the reverse position at a slow rate, reSUlting in a delayed movement of the vehicle in the reverse direction, 4 (f) failing to provide a shift system which had distinct positions for forward, neutral, and reverse, (g) failing to provide a control system in which the shift lever, shift linkage or hydraulic control system could be held in the neutral position, (h) failing to provide adequate warnings to apprise the operator that the vehicle could, or did have a tendency to, move in a reverse direction after a period of delay and while the operator could be off of the vehiCle, (i) failing to provide accurate instructions regarding the need to adjust the shift linkage, shift lever and/or the hydraulic control systell to avoid delayed reverse move.ent of the lift truok without a rider present, (j) failing to provide adequate operator instructions regarding the place.ent of the shift lever in the neutral or reverse position and the consequence of failing to do so accurately, (k) designing the system such that there was or could be too auch free play in the neutral-reverse positions, (1) utilizing an emergency brake system which could and did regularly come out of adjustment or could be maladjusted by an individual operator, rather than utilizing a fixed system, (II) failing to utilize and incorporate an automatic parking brake on to the vehicle or on to the vehicle's pedals, 5 (n) otherwise failing to make the vehicle safe for its intended purpose. WHEREFORE, plaintiff prays for judgment against Defendant in an amount in exc"s of Twenty Five Thousand ($25,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional a.ount requiring compulsory arbitration. COUll'1' II JO" .. AD'" &lID 'AMPaa L. AD'" V. ~aILI.'I", IMO. '~.J:~ LIABILITY .-0 ..GLIO..CI 17. Paragraphs 1 through 16 and Count I are incorporated by reference. 18. Defendsnt Forklifts, Inc. as the Beller of the fork lift involved in the incident is strictly liable under 402A of the Restate.ent of Torts for the defects alleged in paragraph 16 above and incorporated herein by referenoe. 19. Defendant Forklifts, Inc., by contract, re9ularly conducted planned maintenance as well as repairs of the subject forklift. 20. Defendant Fork Lifts, Ino. is liable to Plaintiff for its negligence inl (a) failing to inspect and detect excess free play and .aladjust.ents in the forward/neutral/reverse shift lever, shift linkage and/or hydraulic control system of the subject lift truckl 6 (b) failing to properly adjust the free play in the nautral reveree po.itions of the shift lever, linkaqe and hydraulio control .yste., (c) failinq to alert, instruct or warn plaintiff's employer or plaintiff John Adame of the need to take precautions with the place.ent of the vehicle's .hift .echanism in neutral or reverse, (d) failing to properly adju.t the ellergency/parking brake on the vehicle, (e) failing to alert, advise, instruot or warn Plaintiff'S e.ployer or plaintiff of the danger that delayed reverse .ove.ent could occur when no operator was in the vehicle, (f) failing to inepect or adjust the fork lift so as to prevent it fro. engaging in the reverse position while an operator was not present in the seat, 21. Defendant is also liable under the Doctrine of Res Ip.a LoqUitur as Defendant Forklifts had exclusive control over the aaintenance and adjust.ents of the .ubject forklift shift .echanis., and the vehicle could only go into reverse without a rider present if Defendant had been negligent in its llaintenance of the fork lift truck. WHEREFORE, plaintiff pray. f?r judq.ent aqainat Defendant in en a.ount in exces. of Twenty Five Thou.and ($211,000) Dollars, 7 . exclusive of intereet and costs, and in excess of any juriSdictional amount requiring compulsory arbitration. ANGINO , ROVNER, P.C. an, Esqu re DATZDI 6/10/96 8 . CERTIFICATE OF SERVICE AND NOW, thi. 10th day of June, 1996, I, Pamela J. McClellan, an e.ployee of Angino , Rovner, P.c., do hereby oertify that I have .erved a true and correct copy of the AIIIMDID CO..UIII'1' in the united States mail, po.tage prepaid at Harri.burg, Penn.ylvania, addre..ed as folloWSI , ,. ,. I Walter H. Swayze, III, E.quire MARSHALL, DENNEHEY, WARNER, COLEMAN . GOGGIN 1845 Walnut street Philadelphia PA 19103-4797 Attorneys for Defendant Clark Material Handling Complny William P. Douglas, Esquire DOUGLAS, DOUGlAS , DOUGLAS P.O. Box 261 27 West High street Carli.le PA 17013-02fi1 Attorney. for Defendant Forklifts, Ino. i"', , . . ft..: 1'- I' . " : - ~ . ~.. '.' ~ M r= .:t Z .. :')~ M '32: !~ :c . :..t u.. :.:'l~ :.~ :Jrij rr:i - :~i:1 -- ~ l..~ ~ U) ~ 0" U - ~ \. \ '.... \ ') \; '-:~ - ~ ,\ r JOHN P. ADAMS and his wife, I IN THE COURT OF COMMON PLEAS OF SANDRA L. ADAMS, I CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs . . . . V. I CIVIL ACTION - LAW \ . . cLARK MATERIAL HANDLING . NO. 515-5368 CIVIL TERM . COHPANY and FORK LIFTS, INC., I Defendants : JURY TRIAL DEMANDED ....ollAllDUJI OJ' LAW 1. .utPOaT O. VLAInI...' 1l0TIO. ALL.GA OQIlVLA11lT aDKIH.D aIlQ VULl - .----..-..-- I. J..O.. .....II'r.D WHERE DEFENDANT cLARK'S NEW MATTER CONTAINS NO FACTUAL AVERMENTS, BUT ONLY A LAUNDRY LIST OF AFFIRMATIVE DEFENSES WHICH "MAY" BE ASSERTED, WHILE "RESERVING THE RIGHT" TO ADD OTHERS, HAS DEFENDANT VIOLATED PA.R.C.P. 1019 WHICH REQUIRES A PART'l TO IDENTIFY AND PLEAD THE MATERIAL FAe'l'S SUPpORTING A CAUSE OF ACTION OR A pEFENSE ALLEGED IN A PLEADING? suggested Answer: Yes. .... II. pUCU..IOII Defendant Clark's Answer and Hatter <Attached hereto as Exhibit "A") is a carefullY crafted response designed to avoid any binding admission of fact' while at the same time pre.erving 'one need only read Clark'. verification to see the cara given to avoid identification of any Clark employe. who has knowledge of the subject matter of the litigation. In a similar vein, in paragraph 2 of the Answer, Clark refuses to admit doing business in cUJIIberland county , despite the fact Clark has nece.sarilY had regular and repeated business dealings with Forklifts Inc.! a Camp Hill based company that has sold and serviced Clark fork11fts for more than 20 years. 916&1/11" \ f \ ( )~ I ~ i \ ) I { ( ( {I , 11 ! '. ( I ! I I/f/'/(. I ., . , ~ ! .' ( , '. (I Q v \ ' , ."- )j \ \/ \ ' 1 J ,\ Defendant's right to a.sert every possible affirmative defen.e, without identifying a single fact upon which any particular defense is based. Clark's New Matter is nothing more than an il-parevrapb word prooes.or laundry li.t which could be tiled in any case without regard for John Adams' specific claim. Indeed many of the averments are not fact. but, instead, "maybe.." For example, New Matter, paragraph 24 states I The conduct of person., partie. and/or entities other than Clark Material Handling company aa)' bave beeD int.rvening, .uperseding causes of plaintiffS' in1uries, damages and losses as alleged. (Emphasis added.) New Matter paragraph 26, i. a similar boilerplate allegation claiming to rai.e an affirmative d.ten.e .imply by pleading, "The sUbjeot pro4uat aa, bave beeD SUbstantially changed in it. condition after it left the possession of the manufacturer." (Emphasi. added.) It mu.t be noted that Clark has already had its counsel, who has represented Clark in a substantial number of cases, including other. involving riderless movement of lift truck., a. i. alleged in this case, and two experts who have testified on Clark's behalf on multiple occasions, inspect the lift truck involved in this accident. Defendant has also had complete copies of seveal inches Ind.ed, in reviewing Clark's Answer, one is hard pr...ed to find a single substantive response even to matters within Defendant's knowledge. 2 of document. constituting the sale., repair, and maintenance recorde for the subject forklift truck, the employer's and compen.ation carrier's accident inve.tigation file., and Plaintiffs' Answer. to Interrogatorie. and Responses to Requests for production in it. pos.e..ion for .everal months. Clark, with knowledge of it. own produot's Characteristics, surelY has .ufficient information to identify and plead facts supporting a claim of "substantial change" from date at the time of manufacture. WhUe plaintiff would normallY not bother the court with the.e types of pleading errors, Clark's boilerplate pleading of 18 different affirmative defenses, while blithely "reserving the right" to plead anything else that com.s to mind (New Matter, paragraph 38), pre.ent. precisely the .ame problems to plaintiff that use of boilerplate "otherwise negligent" or "unreasonable under the circumstances" used to present to defendants prior to the supreme court Decision in connor v. A11eahenv General HosDital, 501 Pa. 306, 461 A.2d 600 (1983). As this court is well aware, Connor permitted a plaintiff to as.ert a new theory of liability at trial, which had not been specificallY pled in the factual allegations of the complaint nor disclosed in disoovery, as an "amplification" of an allegation that the defendant hospital was "otherwise negligent." In footnote 3 of the opinion, s=onnor noted that defendants should have filed a 3 motion for a more specific pleading in order to avoid the surpri.. at trial. sinc. connor, virtually .very trial court has .ither stricken gen.ral all.qation. of liability in a complaint or required plaintiff to plead .ore specificallY, where boil.rplate all.gations would permit a plaintiff to raise any conceivable theory of recovery at trial, a.....!il. winter v. Loneraan. 36 cumbo L.J. 518 (1985) . Clark's laundry li.t of general legal conclusion. ~uts Plaintiff in precisely the position as the defendant in Connor. By listing .v.ry conceivable def.nse, without any factual basill, Def.ndant seeks both implicitly and explicitly to pres.rve its right to u.. .ny def.nse at trial. Plaintiff, th.n, must explore .v.ry one of the.e po.sible defens.s in di.cov.ry, and still, like the d.fendant in connor, may well have to confront a surprise th.ory at trial which Clark claims to b. an amplification or .xplanation of one of the myriad of d.f.ns...Z ZPlaintiff'. couneel did make an effort to re.olv. th.s. conc.rn. without involvinq the Court. By t.lephone and l.tt.r, plaintiff'S coun.el propos.d a StipUlation which would allow Def.ndant the opportunity to conduct di.cov.ry, provided Def.ndant WOUld, at the .nd of the di.cov.ry proce.., file an Am.nd.d New Matt.r or substantive r..pon..s to plaintiff'S contention int.rrogatori.. th.r.by identifying the affirmative defen.e. that would aotually be pursued at trial along with the material fact. underlying each defense. D.f.ns. coun.el aqreed conceptually with the proposal but nev.r actually .x.cuted a stipUlation formalizinq and binding the parties. liD, lettera attached to PlaintiffS' Motion. 4 The only real remedy Plaintiff .eeks through this Motion i. a rea.onable degree of certainty concerning which defen.es he will actually have to confront at trial at a point where Plaintiff can .till do something about them via factual discovery. Mr. swayze, however, is unwilling to provide that protection by stipulation or by acceeding to the instant Motion. Rather, he claims that neither the Rules of civil Procedure requiring parties to plead material facts nor Connor are applicable to New Matter. According to swayze, simply because he is a Defendant, not a Plaintiff, the rule. of pleading do not apply. Mr. swayze is wrong. Pennsylvania is, and has always been, a ~ pleading utate. Its RUle. of Civil Procedure are de.igned to be evenhanded. They do not bestow any advantage to the Defendant when pleading "New Matter" where the Defendant asserts an affirmative defen.e on which the Defendant bears the burden of proof. Pa. R.C.P. 1019(a) explicitly requires that, liThe material fact. on which a cause of action or defense is based shall be stated in a concise and eummary form." (Empha.is added.) Pa. R.C.P. 127(b) states, "Every Rule shall be con.trued, if possible, to give effect to all provi.ions. When words of a rule are clear and free from all ambiguity, the letter i. not to be disregarded under the pretext of pursuing its spirit. I' 5 Pa. R.C.P. 128(b) indicates a court, in interpreting a Rule of Civil Procedure is to a.sume, "That ths supreme court intends the ellUre rule or c:hapter of rule. to be effective and certain." No ambiguity exists in the language of Rule 1019(a). What reason exists for the Supreme court to include the words "g[ defense," in conjunction with "cause of action" in the Rule, other than to make the Rule applicable to the pleading of affirmative defen.es? Why would this obligation not apply to an affirmative "defense" pled in "New Matter" under Rule 1030, where both Rule. deal with pleadings and both u.e the word "defenee" in the context of a pleading? Pa. R.C.P. 131 explicitlY states, "Rules or parts of rule. are in pari materia when they relate to the same proceedings or cla.. of proceeding.. Rules in pari materia .hall be conatrued teaether. if Do..ible. aa one rule or one chapter of rule.." Your Honor i. directed to Allen v. LiDaon, 8 D. , c. 4th 390, 394 (C.P. Lycoming 1990), an an &1.IJ1g decision of the Lycoming county Common Plea. Court which deala precisely with the issue raised here. In reference to Rule 1019, Judge smith stated, "Affirmative defenses are not excluded from this mandate. Rule 1030 must be read in pari materia with Rule 1019(a)." Allen at 394. The Court went on to rejeot an argument that since the affirmative defense was merely a conclusion of law requiring no 6 response, the same specificity required in the complaint ehould not be applied to New Matter. The Court, instead, looked to the holding of Connor v. Alleahenv General HosDital, 501 Pa. 306, 461 A.2d 600 (1983), and the equities of forcing plaintiff to plead specific facts while allowing the defendant to plead New Matter in conclusory fashion. The Allsn Court explained the two choices Connor gave to defendants and the reasons why plaintiff should be in the same position, as follows: [F)irst, they [defendants] may file a preliminary objection as suggested by the supreme Court in footnote 3, connor, SUDra, and have the general averment stricken or, second, they can embark upon a course of thorough and extended discovery that will hODefullv assure them that there are no unpled facts that would support a new claim under a general averment of negligence or other cause of action. One does not have to be an experienced practitioner to determine which of these choices is easier and most likely to guarantse the desirsd result of eliminating surprise at the time of or on the eve of trial. Connor guarantees the first choice to defendants. Plaintiffs should have the same choice in dealing with factually unsupported allegations of defendants contained in new matter to minimize the chance they will have to defend a surprise claim at trial. To hold otherwise would put the onus on plaintiffs to conduct extensive discoverv to disprove a factuallv unsUDDorted allegation rather than requiring the defendants who asserted ths allegation to marshal the facts to support it. We find that this burden should be on the party asserting the allegation. Allen at 393. (EmphaB~s added.) Allen does not stand alone. Even before Connor, Courts have declared that where New Matter sets forth an affirmative defense, it is to be regarded in the same fashion as a plaintiff's statement 7 of claim and must have the same definitiveness and particularity as a complaint. william. Chevrolet-Cadillac. Inc. v. camDbell, 12 Leb. L.J. 106 (1967) (opinion by P.J. Gates), oiting Gehnt v. Mitten Bank Securities COrD.. 120 pa super. 198, 182 A.2d 125, (1935) . since connor, a number of local Courts have reached the same conclusion as LiDson, requiring defendants to plead the material facts underlying affirmative defen.es in conformity with Rule 1019(a). In Rivera v. Arbor Place Inc., 4 D. , c. 4th 44 (C.P. Lanc. 1989), Judge Georgelis held Rule 1019(a) and Connor to be applicable to New Matter, and required defendants file a more specific pleading. In Adam. county, Judge Ruhn, finding the reasoning of Rivera and the language of the RUle. persuasive, likewi.e ordered defendant. to replead their affirmative defense. by stating the material fact. upon which they are based. Fitzaerald v. Kaauvutan, 18 D. , c. 4th 1 (C.P. Adams Co. 1993). Most recently, Plaintiff'e coun.el argued essentially the same preliminary Objection. before Judge Kaye in Franklin county. Although he did not write an Opinion, Judge Kaye, like the other jurists cited above, issued an Order requiring the defendant to plead his affirmative defenees with facts, not conolu80ry legal ...ertion. about what "may be" proven at a later date. au, Plaintiff's Motion and Court order in Danzberaer v. Blos.om Ind. 8 Franklin Co. Common Pleas, No. A.D. 1995-12, attached hereto as Exhibit "C". plaintiff submit. Clark i. subject to the same rules and requirements as plaintiff on those matters which it has the duty to plead and provs. Clark should not be permitted to force Plaintiff to cha.e rainbows during discovery trying to develop information regarding every conceivable defense which Defendant can or will choose to assert up the day trial starts. Ample precedent exists for Cumberland county to follow its fellow Common Plea. Courts and Order this Defendant to do exactly what Rule 1019 (a) requires: plead the material facts on which its "defense" is bas.d. Ons final matter concerning the timeliness of plaintiff's Preliminary Objections to Defendant'. New Matter need. to be addr..sed briefly. Plaintiff did not file the Objections or an An.wer to New Matter when Clark's pleading was received because Plaintiff'S counsel, after discussions with Mr. swayze, was left with the distinct, but the apparently erroneous, impression that Defendant was willing to reach a good faith resolution of Plaintiff's counsel's concerns about the open-ended allegations in New Matter, without Court intervention. At this juncture, Plaintiff does not feel a detailed Court inquiry as to precisely what one lawyer said to another is necessary to resolve the issues presented in this motion. This Court has recognized that procedural defects should not deter the 9 Court from reaching tha merits of a Motion unlees some real prejUdice can be shown by the non-moving party. Passaro v. W'M printina. Inc., 40 cumb. L.J. 28 (15189). Here, Plaintiff delayed filing the Motions in the hope Court involvement would ba unnacessary. Evan if Clark can show they actad in good faith, without miSleading Plaintiff that they intended to resolve the issues without the need for motions and argumant, they cannot show any real prejUdice from the delay in this Court addras.iny the merits. Indeed, the delay has givan Clark saveral additional months to gather tha facts needed to support their alleged dafanses and plead facts, rathar than word processor conclusiona. Clark, then, has sufferad no demonstrable prajudice by having to addre.s the merits now, rather than earlier. Respectfully submitted, ANGINO , ROVNER, P.C. DATED I 5/16/96 10 CERTIFICATE OF SERVICE AND NOW, this 16th day of May, 1996, I, Pamela J. Gillespie, an employee of Angino , Rovner., P.c., do hereby certify that I have served a true and correct copy of the IIIIIODIIDUII O. LAW III .UP~.'I' O. .LAllITlr..' lIono. '1'0 DID ALLlaA'l'IO.. O. 'l'B. COMPLAIIIT UIII'I"I'ID &lID PULIMIIfUY OIlJIO'1'IO.. 'l'O lID 0'1"1''' O. D..IIlDUl'I cLUE IIA'I'..IAL IlUIDLI.a COMPUY in the united states mail, postage prepaid at Harrisburg, Pennsylvania, addres.ed as follows: Walter H. swayze, III, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN , GOGGIN 1845 Walnut street Philadelphia PA 19103-4797 Attorneys for Defendant Clark Katerial Handling company William P. Douglas, Esquire DOUGLAS, DOUGLAS & DOUGLAS P.O. Box 261 27 West High street Carlisle PA 17013-0261 Attorneys for Defendant Forklifts, Inc. ~..~~~~L'~ pamela J. G P e ;;.~, ',. . ...,.~, ,..... ~~.~:.7 ',<2-:;;':0:: "".~ .....'" '. "c,' i.._':'.';;"~~;.....:;i.' , HEREBY CERTIfY THI\TTHt WIlHIN tS 1\ TRUE ~NO CORRECT copy Of THE ORIGINI\\. fILEO'WnH THE COURT. YOL' ^ ~ TO Tu. HE".I\' NOT , "~rt'~'1l ~~ W1iHI:~ 1 IVI .... DtO .O\D ~J~~~.T.~ rr ~;:~.:J~OI ~AA ~ ~~O.'.l Till YOU. '. "",y IUNTI~EO ~=: IN THK COURT or COMMON PLU.S or CUMBERLAND COUNTY, PENNSYLVANIA JOHN P. ADAMS and His Wife, SANDRA L. ADAMS CIVIl. ACTION - LAW No. 95-5368 Civil Term vs. CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. ANSWER orDE.r~~;:.:. CLUIt MATERIAL HANDLING COMPANY. !l;! !~m:L!S' COMPLAINT WITH HEW MATTER 1. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 1 of Plaintiffe' Complaint. Therefore, said averments are denied. 2. Admitted in partl denied in part. It is admitted only that defendant. Clark Material Handling company, is a corporation engaged in the manufacture, design, distribution and sales.of" induetrial material handling equipment. It is denied that answering defendant regularly sells products and otherwise conducts business in cumberland county, Pennsylvania and/or that the product at issue in this matter was designed, manufactured and sold by answering defendant. strict proof is demanded at trial. - 3. To the extent the averments set forth in paragraph 3 of Plaintiffs' 'Compiaint are directed to a party other than answering defendant, no response is required under the Pennsylvania Rules of Civil Procedure. 4. Denied. To the extent the allegations set forth in paragraph 4 of Plaintiffs' Complaint con~titute conclusions of . law, no response is required under the Pennsylvania Rules of civil Procedure. By way of further response, it is specifically denied that defendant, Forklifts, Inc., is an agent of defendant, Clark Material Handling Company; Forklifts, Inc. and Clark Material Handling Company are separate jural entities and allegations as to any agency relationship are specifically denied. Strict proof is demanded at trial. 5. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 5 of Plaintiffs' complaint. Strict proof is demanded at trial. 6. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 6 of Plaintiffs' Complaint. Accordingly, said averments are " specifically denied. By way of further response, any and all allegations as to the identity of the forklift including its make and model are specifically denied as plaintiffs are left to their proofs. Strict proof is demanded at trial. 7. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 7 of Plaint1ffs"Complaint. Strict proof is demanded at trial. B. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph B of Plaintiffs' Complaint. Strict proof is demanded at trial. 9. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 9 of Plaintiffs' Complaint, therefore, said averments are specifically denied. By way of further response, if plaintiff sustained injuries as alleged including the injuries set forth in paragraph 9 of Plaintiffs' Complaint, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. 10. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 10 of Plaintiffs' complaint, therefore, said averments are specifically denied. By way of further response, if plaintiff did sustain injuries as alleged in paragraph 10 of Plaintiffs" Complaint, and/or plaintiff will incur additional medical expenses in the future, answering defendant denies any and all liability for past, present and future injuries. Strict proof is demanded at trial. -3- 11. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 11, therefore, said averments are denied. By way of further response, it is specifically denied that plaintiff has suffered a permanent diminution of his earning capacity. If plaintiff has and/or will sustain injuries, damages and/or losses as alleged, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. 12. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 12 of Plaintiffs' Complaint, therefore, said averments are specifically denied. By way of further response, it is specifically denied that as a direct result of the accident described in Plaintiffs' Complaint, plaintiff incurred medical bills approaching $15,000.00 in wage losses in excess of $6,000.00. If plaintiff has and/or will sustain injuries, damages and/or losses as set forth in Plaintiffs' Complaint, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. 13. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 13 of Plaintiffs' Complaint, therefore, said averments are specifically denied. By way of further response, it is -4- ! i .1 , , .pecifically denied that as a direct result of his injuries, plaintiff has in the past suffered acute and disabling pain and will in the future suffer pain, anxiety and suffering. If plaintiff has sustained injuries, damages and/or losses as alleged in Plaintiffs' complaint, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. 14. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 14 of Plaintiffs' Complaint, therefore, said averments are specifically denied. By way of further response, it is specifically denied that as a direct result of plaintiff- husband's injuries, plaintiff-wife has suffered a loss of consortium, advice, society and comfort. If plaintiff-wife has suffered injuries, damages and/or losses as alleged, answering defendant denies any and all liability therefore. Strict proof is demanded at trial. ~QllH'1' I .-rOM P. ~~...:. ..~d Band;a L. a.d_. v. Clark II!.!:- r~!~ HandlinCl cOiimanv IlI!ICT LIABILITY 15. Answering defendant, Clark Material Handling compa~~, incorporates its responses to paragraphs 1 through 14, inclusive, of Plaintiffs' Complaint as though set forth at length herein. 16. Denied. To the extent the allegations set forth in paragraph 16 of Plaintiffs' complaint constitute conclusions of law, no response is required under the pennsylvania Rules of civil procedure. By way of further response, it is specifically -5- denied that answering defendant, Clark Material Handling Company, . . is strictly liable to plaintiff under S402(A) of the Restatement of Torts (Secondl for the damages alleged in Plaintiffs' Complaint which were directly and proximately caused by the forklift truck identified in Plaintiffs' complaint. By way of further response, it is specifically denied that the forklift described in Plaintiffs' complaint in its as-marketed condition caused or contributed to the cause of the subject accident or plaintiff's injuries with regard to its design, manufacture or marketing, including but not limited to the following: (al It is specifically denied that the forklift described in Plaintiffs' Complaint malfunctioned in the absence of a reasonable secondary cause when it went into reverse without a driver present on the vehicle; (b) It is specifically denied that the subject forklift described in Plaintiffs' complaint was defective in any manner whatsoever in failing to have any operator presence controls on the forklift; By way of further response, the forklift is equipped with a hand operated parking brake and an ignition as well as warnings which make the forklift safe for its intended use; (c) It is specifically denied that the subject forklift described in 'Plaintiffs' Complaint was defective in any manner whatsoever with respect to constructing the forward/neutral/reverse shift lever, linkage and hydraulic -6- control system without separate, distinct detents for forward, . reverse and neutral; (d) It is specifically denied that the subject forklift described in plaintiffs' complaint was defective in any manner whatsoever including constructing the shift lever, shift linkage and hydraulic control system in such a manner that the operator could place the vehicle in what appeared to be neutral position when the vehicle, in fact, was in reverse; (e) It is specifically denied that the subject forklift described in plaintiffs' complaint was defective in any manner whatsoever including designing and constructing the shift lever, shift linkage and hydraulic control system which would allow the hydraulic control system to operate in such a manner that the hydraulic cylinder could receive hydraulic fluid in the reverse position at a slow rate, resulting in a delayed movement of the vehicle in the reverse direction; (f) It is specifically denied that the subject forklift described in Plaintiffs' complaint was defective in any manner whatsoever including failing to provide a shift system which had distinct positions for forward, neutral and reverse; (g) It is specifically denied that the subject forklift described in Plaintiffs' complaint was defective in any manner whatsoever including failing to provide a control system in which the shift lever, shift linkage or hydraulic control system could be held in the neutral position; -7- .. (hI It is specifically denied that the subject . ' forklift described in plaintiffs' complaint was defective in any manner whatsoever including failing to provide adequate warnings to appraise the operator that the vehicle could, or did have a tendency to, move in a reverse direction after a period of delay and while the operator could be off the vehicle; (i) It is specifically denied that the subject forklift was defective in any manner whatsoever in failing to provide accurate instructions regarding the need to adjust the shift linkage, shift lever and/or the hydraulic control system to avoid delayed reverse movement of the lift truck without a rider present; (j) It is specifically denied that the subject forklift described in plaintiffs' complaint was defective in any manner whatsoever including failing to provide adequate operator instructions regarding the placement of the shift lever in the neutral or reverse position and the consequence of failing to do so accurately I (k) It is specifically denied that the subject described in plaintiffs' complaint was defective in any manner whatsoever including designing the system such that there was or could be too much free play in the neutral reverse position; (1) It is specifically denied that the subject forklift was defective in any manner whatsoever including utilizing an emergency brake system which could and did regularly -B- I' I ",' I I -.! ; I \ , I , l! , ,i. , , ! i , I i I \ i come out of adjustment or could be maladjusted by an individual operator, rather than utilizing a fixed system; (m) It is specifically denied that the subject product was defective in any manner whatsoever including failing to utilize and incorporate an automatic parking brake on to the vehicle or on to the vehicle's pedals; (n) It is specifically denied that the subject product was defective in any manner whatsoever, and it is specifically denied that the vehicle was unsafe in any manner whatsoever I To the contrary, the subject product, as marketed, contained every element necessary to make it safe for its intended use and was safe for its intended purpose. Strict proof of the foregoing allegations is demanded at trial. WHEREFORE, answering defendant requests this Honorable Court enter judgment in favor of defendant, Clark Material Handling Company, and against plaintiffs, together with costs and attorney'. fees. ~mn:. II John P. Ad.~i. an~ ~~dr a.i~. v. Forklift.. Ina. 8!!_C!-~I~ILITY AND HKGLIGKNC. 17. Answering defendant, Clark Material Handling company, incorporates by reference its responses to paragraphs 1 through 16, inclusive, of plaintiffs' complaint as though set forth at length herein. lB. The allegations set forth in paragraph IB pertain to a party other than answering defendant, therefore, no response is required under the pennsylvania Rules of Civil Procedure. -9- 19. The allegations set forth in paragraph 19 pertain to a party other'than' answering defendant, therefore, no response is required under the Pennsylvania Rules of Civil Procedure. 20(a-f), inclusive. The allegations set forth in paragraph 20 pertain to a party other than answering defendant, therefore, no re'1ponse is required under the pennsylvania Rules of Civil Prot'edure. 21. The allegations set forth in paragraph 18 pertain to a party other than answering defendant, therefore, no response is required under the Pennsylvania Rules of Civil Procedure. WHEREFORE, answering defendant requests this Honorable Court enter judgment in favor of defendant, Clark Material Handling company, and against plaintiffs, together with costs and attorney's fees. NEW NATTIR 22. plaintiffs' complaint fails to state a cause of action upon which relief may be granted. 23. The conduct of persons, parties and/or entities other than clark Material Handling company was/were the proximate cause of plaintiffs' injuries, damages and losses as alleged. 24. The conduct of persons, parties and/or entities other than Clark Material Handling company may have been intervening, superseding causes of plaintiffs' injuries, damages and losses as alleged. 25. The conduct of the plaintiff was the sole cause of injuries, damages and losses, if any. -10- . 26. The subject product may have been substantially changed in its condition after it left the possession of the manufacturer. 27. The subject product may have been misused and/or abused. 28. Plailltiff assumed the risk of a known danger. 29. Stxict products liability is inapplicable as a matter of law. 30. The subject product, as designed, manufactured and marketed, contained every element necessary to make it safe for its reasonablY foreseeable and intended uses. 31. As a matter of law and social policy, the subject product was not unreasonably dangerous. 32. The subject forklift was equipped with a parking brake which, if properly maintained and used by plaintiff, would have prevented plaintiff's injuries. 33. The product identified in plaintiff's complaint is not a product of defendant, clark Material Handling Company. 34. The product contained all necessary warnings, instructions and directions. 35. The product, as marketed with warnings, instructions and directions was safe for its intended use inasmuch as if said warnings are followed, the product is safe for its intended use. 36. Forklifts, Inc. is not an agent of answering defendant and, therefore, the pleading of agency relationship therefore is improper as a matter of law and fact. -11- . . 37. Delay damages are inapplicable and unconstitutional. , . 38. Answering defendant respectfully reserves the right to amend its New Matter. WHEREFORE, answering defendant requests this Honorable Court enter judgment in favor of defendant, Clark Material Handling Company, and against plaintiffs, together with costs and attorney's fees. MARSHALL, COLEMAN & WARNER, BY: , QUIRE SWAYZE, III, ESQUIRE Attorneys for Defendant, Clark Material Handling Company 1845 Walnut Street philadelphia, PA 19103-4797 (215) 575-2600 .. -1- f . VERIFICATION , . I, DAVID C. FIELD, declare that I am house counsel for Clark Material Handling Company, and that I am executing the foregoing Answer of Defendant, Clark Material Handling Company, to Plaintiffs' Complaint with New Matter for and on behalf of said Defendant, and that I am duly au~horized to do so. That the matters stated in the foregoing responses are not within my personal knowledge and I am informed that there is no officer of Defendant who has personal knowledge of such matters; that the facts stated in said responses have been assembled by authorized employees and counsel of Defendant, and I am informed by said counsel that the facts stated in said responses are true. I declare, under penalty of perjury, under the laws of the state of Kentucky, that the foregoing is true and correct. Executed this the .-1.- day of JJI~ , 1995 at Lexington, Kentucky. CLl\R~TER'''' IU\NDL." ""'P- By: ~~ DAVID C. F ELD STATE OF KENTUCKY COUNTY OF FAYETTE SUBSCRIBED AND SWORN to before me by DAVID C. FIELD attorney for Clark Material Handling company, this '.li:..A. day of t<l ~ ~ 1995. My Commission cky t " IN THE COURT OF COMMON PLEAS QI' CtJHIlERLAND COtlN'l'Y, PENNSYLVANIA. JOHN P. ADAMS and His Wife, SANDRA L. ADAMS CIVIL ACTION - LAW No. 95-5368 Civil Term vs. CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. CERTIFICATION OF BERVICE I hereby certify that I have served the Answer to Plaintiff's Complaint with New Matter upon all parties as listed below on this date. Terry S. Hyman, Esquire 4503 North Front Street Harrisburg, PA 17110 William P. Douglas, Esquire DOUGLAS, DOUGLAS & DOUGLAS 27 West High Street P. O. Box 261 Carlisle, PA 17013-0261 , WARNER, - ... ...... y , III o Defendant, rial Handling 1845 Walnut Street philadelphia, PA 19103 (215) 575-2823 DATED I November 27, 1995 ~I ^;i -",..~':"~'..-'-., " . 1QIIftIM.1i&IILO 'llUV 1,IMWl !lAW! L. um ..,..wL ..IOIIK .~ a,llI\lMAII CA,..uG M. MAIlADVoIIII'lK IIOIIIIP A. lAIlLOCIt !lAW! I, W11I111Ja ANGlNO & ROVNER, P. C. IllKlU c, OUON MICllAILI. .."vmKV aOlIt J, M.a....11 ~ UoWUllC1 ., IUOHll D"WIl L. _as I'IVllIII ... I'IIlPSEN IOLllMOH Z. UEVIKV JlIIUIt M. DOaIA UIlID III 11IE 8FST lAWYDS -1Il- AMERICA aIOlAaIl C, AIIOIIlO IlIII.l,aOVlU D.c.mber 7, 1995 walt.r H. swayz., III, !equir. Marehall, nann.h.y, Warn.r, col.man . Goggin 1845 Walnut str..t Philad.lphia PA 19103-4797 R.I Adame v. Clark Material Handling and Forklift-, Inc. Your Fil. No. 03052-00127 naar Mr. swayze I ". diecu...d I am .ncloBinq R.qu.et for AdmieBione in re.pon.. to your denial that Clark doe_ bu. in... in cumb.rland county and th.t the product involv.d in the accident .s your.. Pl.... und.r.tand th.t if you do not file tim.ly anew.r. to the Requ..t for Admi..ion. or am.nd.d Anew.re to the R.qu..t aft.r you have in.p.ct.d the v.hicl., I will ...k .anction. for bad faith di.cov.ry. Th.re i. .nd will b. ab.olut.ly no di.put. that Cl.rk do.. r.qular bu. in... with Forklift., Inc., which i. loc.t.d in cumb.rl.nd county nor that the v.hicle involv.d in this accid.nt wa. a Clark product. A. d1acu...d I would like to avoid unn.c....ry proc.dur.l arqUlll.nt., while at the .am. tim. prot.ctinq my client aqain.t ".urpr1a.." at trial. I am willinq to forgo tilinll Prelimin.ry Obj.ction. to the extremely vaqu. alleqations of Naw Matt.r provid.d that w. can r.ach .n .Ilr..mant concarninq id.ntific.tion. of tho.. affirmative d.t.n... you .ctually will a...rt .t trial.. the fact. und.rlyinq each d.f.nse. I th.r.for. propo.. .n allreem.nt by coun.el that you will an.wer illY cont.ntion int.rrollatori.. which a. you to id.ntify you th.ori.. of dat.n.e within 45 day. after r.c.ivinq illY .xp.rt r.port. I further propo.. w. m..t and ..tablieh a r.a.onabl. d.adlin. for the exchanll. ot .xpert report., .0 we can both be in poaition to pr.par. for trial. .101 NDIlTH 'llaNT ITIlIET, """IIIIUIO, 'A 111l0.I1DI . 11m nM1Il . 'AX 11m ....'D . W.lt.r H. IW.Y.., III, I.quira Deo.mb.r 7, 1~15 '.9. 2 .1.... l.t .. know your r..pon.a to my propol.l. .. .oon .. pOllibl.. Until I h..r from you I will .llum. I have .n .xtanlion to fila .y r.lpon.a to your Naw Matt.r. v.ry tl'Uly youn, ~H...n T8R/l.1 Inclo.ura CCI William P. DOU91.1, llquira (w/ano.) .' . " , ...... II. MIIULLD ftUY I.IIYMAN DAVID L. wn IIQlAII. I.kOlIK .~ O.11l\IMAII IIOlAaII A. IAIJI,OCIt DAVID I, WlItlIIIlCI ANGINO & ROVNER, P, C. IftIOU C. OUON MIOlAIL I NAVlnItY . - . 1A'fl'IIl'Ia ., .,..QHI DAWN L.l\!HNINOI II1IfttEIl a. ftIlDIeN IQl.OIION z. DEVIKY 1OIEftI1I DOaIA UIl1lJlIII 11IE BEST UWYflS -11I- AmICA aJQl.UIl C. ANOIIlO NllLI,ao- February 5, 1996 Walt.r H. swayz., JII, z.quir. Marehall, Denn.h.y, Warner, col.man , Goggin 1845 Walnut str..t Philad.lphia PA 19103-4797 R.I .Adam. v. Clark Mat.rial Handling and Forklift., Inc. Your Fil. No. 03052-00127 Dear P.t.1 It app.ar. that .omehow our oral cOlDIDunication. and your follow-up l.tt.r do not alway. match pr.ci..ly. My und.rstanding of our di.cua.ion at the in.p.ction wa. that you would ..nd m. not only cop i.. of all the photographs tak.n by both .xp.rt., but also their fi.ld not.. and ..a.ur.m.nt. of the various forc.s involv.d don. by your exp.rt. on the lift. Additionally, I indicat.d that I wa. not .un wh.th.r my expert took photograph. but that I would ch.ck and e.nd you what I had. I did not r.pre.ent to you that th.y ectually exi.t. I do not b.liev. .ny video wa. tak.n at the in.p.ction but will egain check our r.corda to b. certain. I will have our vid.ographer .end you a compl.te un.dit.d copy of the vid.o. I al.o look forward to getting dat.. from you for a corporat. d..igne. deposition from Clark and an.w.re to the di.cov.ry which w. ..rv.d upon you, which you promi..d to .upply by Janu.ry 19. I h.v. al.o review.d my l.tt.r to you of Dec.mb.r 7, 1995, following the filin9 of your An.w.r and N.w Matt.r. YoU have now in.p.ct.d the lift in qu..tion. I ... no rational baai. for you to rafu.. to acknowledge that you are the manufactur.r and that Clark doe. bulin... in pennaylvania. Pl.... fil. .ith.r an am.nded an.w.r to our R.qu..t for Admis.ion. and/or an Amend.d Anawer to the Complaint. In revi.wing my December latt.r, I r.alized that I have no writt.n document acknowledging our agr..ment concerning your fil1n9 either Amended New Matter or an.were to our contention UD29IPJO ..01 NORTH 'RONT 'TRIET, HARRI'aURO, Pol 11110.1101 . (711') ....78' . ,,.. (711') .....'0 ~ W.lter H. S~.Yle, III, I.quire February !S, 19516 F.;e 2 interro;atorie. 45 d.y. after receivin; ay expert report. I have therefore enclo.e4 a stipulation to that effect. Pl.... .i;n it and r.turn it to a. by F.b~l.ry lB. If I 40 not r.c.iv. it by th.n, I will b. fill in; both pr.liainary Obj.ction. to your An.wer and. Motion to Coap.l. A. I'v. .tat.4 b.for. I do not wi.h to be bl1nddd.d or have to d.al with def.n... 4i.clo.ed at the la.t ainut. rather than durin; di.cov.ry. If you ar. not willin;, or i;nore the stipul.tion, I will have the Court i.au. an Order to protect a.. I continua to look forward to working with you on a coop.rativ. b..i.. I al.o look forward to rec.ivin; .ome aub.tantive information r.gardin; the ca... V.ry truly your., . Hpan TBH/pj; CCI Willi.. F. Dou;l.., I.qui . . ( JOHN P. ADAMS and hb wife, BANDRA L. ADAMS, plaintiff. . IN THE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, PENNSYLVANIA . . CIVIf, ACTION - LAW v. . . CLARK MATERIAL HANDLING COMPANY anlt roRlUoIF'l'S, INC., Defendant. . NO. ~5-5368 CIVIL TERM . . . .~!.DL&~IOM o. OOUHI.~ AND NOW, plaintiff. John P. Ada.. and Bandra L. Adam., hi. wife, by th.lr coun..l, An;lno , Rovn.r, P.C., and D.f.ndant Clark Mat.rial. Handlin; co., by it. coun..l Walter H. SwaYEe III, E.qulre, hereby .tlpulat. and agree to the following. 1. plaintiff. will fore;o filing any Pr.ll.1nary Obj.ction. or any obj.ction to the An.w.r and N.w Matt.r of Defendant Clark Mat.riala Handling Coapany, or the right to have a court declare any alle;atlon in the An.wer ahall b. d....d an adal..ion of the corr..pondin; alle;ation in the co.plaint, and .hall not fl1. an 1...diat. Motion to Co.p.l An.w.ra to Plaintiff.' cont.ntion Int.rrogatorie., provid.d Def.ndant Clark Mat.rial. Handlin; co.pany ahall co.ply with the followin;. 2. within thirty (30) daya of the completion of th.ir in.p.ction of the aubj.ct forklift Clark IIhall fil. an blnd.d An.w.r and New Matt.r whlch aub.tantiv.ly affira. or d.nl.. that Clark Material. Handling company r.gularly .ark.t., adv.rti... and 1506'''1" ." ..rvic.. .quipment .old in the COllllllonw.alth ot Penn.ylvania or otherwb. regularly conduct. bu. in... within the COlIIDonwealth, including cumberland County, p.nn.ylvania. 3. Within torty-tive (45) day. ot the rooeipt ot Plaintitt.' .xp.rt report, Det.ndant Clark .hall file banded N.w Matter and/or v.rifi.d An.wer. to Plaintiff.' contention Int.rrogatori.. which identifies the affirm~tiv. def.n.es which will be pursued at trial and all.gation. ot the mat.rial fact. upon which the det.n.e. are ba..d. The banded N.w Matt.r or interrogatory an.w.r .hall id.ntify all per.on. oth.r than Clark, including plaintift, who are all.g.d to have contribut.d to Plaintiff'. injuri.., the nature of ~h. conduct all.ged to have contributed to Plaintiff'. injurie., and the aann.r in which .uch conduct contributed ~o the all.ged injurie. and overy alteration, mi.u.e or abu.. of the product and ~he aanner in which ~he all.g.d alt.ration, ai.u.e or abu.e contribut.d to Plaintitf.' injurie.. Plaintift .hall not file an exp.rt r.port until Def.ndant Clark has had a r.a.onabl. time to conduct rel.vant di.cov.ry from Plaintiff. and other parti.. in ord.r to d.t.rmine the factual ba.i. for the aftirmative d.f.n.... ... Should Def.ndant Clark Mat.dale Handling company fail to comply with the term. of the stipulation a. .et forth abov., plaintiff. .hall have ~he right to coapel Det.ndant to do .0, .ubj.ct to .uch .anction. ~he Court d.... appropriat., inclUding but not limit.d to, pr.cluaion of evidence or binding adllli.aions a. 2 .' " . vall a. attornay. fa.. for filinIJ an aotion to enforo. thi. AIJr....nt. plaintiff. aay aleo fn. any plaacUnlJ whioh wa. avanabl. to plaintiff. upon r.oaipt of Clark'. An.wer and Naw Nattar and .a.k any r...dy which the Court d.... appropriat.. MGINO , ROVNER, P.C. T.rry s. Hyaan, l.liU1ra I.D. No. 36807 4503 North Front str..t Harri.burIJ PA 17110 (717) 238-6791 coun..l for plaintiff DATED I MARSHALL, DINNEHEY, WAltHER, COLBIIAN , GOGGIN Waltar H. sway.a, z.quira 1845 Walnut stra.t Philad.lphia, PA 11103-4717 coun.al for Defandant Clark Katarial HandlinlJ Coapany 3 . LAW omw MARSHALL, DENNEHEY, WARNER COLEMAN 8 GOGGIN PnTSltJP.OH.I'OIIISYl.VANIA t'IIIIH~ FAX 14I1llHo4OPI saAlrnlN.l'OIIISYl.VANIA (1Il1 )lH'" FAX, (1Il1 )1104'" 6ST QUSTlI., I'OIIISYl.VANlA t6101411041110 FAX,t6101411",1Il MAMTON. Nt'&')wn (1Oll1H',ltIIO FAX, IIOllI "'0411I lMIlOSTON, NE'f/ IOlSlY nOli 99HIOI FAX, nOli ""'HI W/IU.WoISI'OIIT, I'OIIISYl.VANlA 11111116.1091 FA)(, 1111I116.1101 'MUoIlNOTON.lJfU'I'W (101l61I.ltIIO i FA)(, (1011611._ D r.ct Dial 575-2823 AUJm'OI'IN.I'OIIISYl.VANIA (1101116-'100 FAX> (1101116-"" 1lO\'lIITllWN.I'OIIISYl.VANIA (1Il1 )41,1111 fAX, 1II1ll4f.)l19 IlUJll101IIIO, IINNfYI.\'ANIA till) 11I..011 FAX> IIIIlIlHI49 LNlCAITD.I'OIIISYl.VANIA lllll'""'" FAll, (1II1"1oI111 IotEIlIA.I'INNSYl.VANIA (6101 "'''100 FAll. (1101 "1-1110 1<<lM15TOI/N.I'OIIISYl.VANIA t"OIDI_ FAX> (l1011t1~10 ^ ",CHSSIONA1. OOUOMllON 114''I'AWUTmErT 1IlJIA[II1JHlA,I'INNSYl.VANIA 191010411I tllll Sll.I6IIO CAllI AIDI5S-MAXSHAU FAll,n1l11ll4l16 F.bruary 22, 1996 T.rry s. Hyman, Esquire ANGINO , ROVNER 4503 North Front str..t H.rrisburg, PA 17110 R.I John P. Adame and Hi~ Wif., sandra L. Adams v.. Clark Mat.rial Handling Co.pany and Forklifts, Inc. court of common Pl..s, cumberl.nd county, PA CA No. 9fHl368 Our Fil. No. 03052-00127 Dear T.rrYI On F.bru.ry 15, 1996 w. continu.d our diacussion. r.lativ. to the status of pl.ading. and discov.ry in this ..tt.r. To the .xt.nt po..ibl., without binding .ither of u., pl.... acc.pt this l.tt.r .s my .ffort to .emorialize the conv.r..tion. A. of the date of dictation of this lett.r, d.f.nd.nt ha. not r.ceiv.d Plaintiff'. Response. to Def.nd.nt'. Int.rrogatori.. or R.qu..t to produc.. W. .w.it r.c.ipt of ..... Pl.... ch.ck ~to ..k. .ur. .... w.. .ailed. If you would be.o kind, pl.... ,. ~ 01_ cont.ct my .ecr.t.ry upon your rec.ipt of this lett.r to ... if ~.'\p the ..t.ri.l. h.v. be.n r.ceiv.d. If th.y .r. not, pl.... r..end th... W. ar. in the proce.. of co.pl.ting D.fend.nt'. R..pon... to Pl.intiff'. Interrog.tories. We will forward v.rifi.d r..pon.e. to you .. .oon as practic.bl.. It i. my understanding that your concerns regarding Clark'. An.w.r have be.n alleviated .nd that you will be filing Pl.intiff'. Reply to Defendant'. New Matter in li.u of filing preli.in.ry Objection.. Please advise .e in this r.gard if I .m incorrect. . T.rry I. Hyman, E.quir. r.bru.ry 221 1996 p.;e 2 ------------------------ Reg.rding the .cheduling of di.covery, we have agreed that w. will conf.rence March 1, 1996 to di.cu.. the proce.. of di.covery in thi. c.... Mr. Bell and I intend to obtain our client'. .pproval in ..tabli.hing a di.cov.ry .ch.dul. .gr.ed upon a.on; the parti... In thi. r.gard, w. are w.ll aware that you would like d.f.ndant'. .xp.rt r.port(.) to follow def.ndant'. r.c.ipt of plaintiff'. .xp.rt r.port. by a det.rmin.d p.riod, i..., forty-five (45) day., with d.fendant cont.mpor.n.ou.ly .upplying r..pon... to plaintiff'. contention int.rrOQatori.. to the .xtent th.t f.ctual cont.ntion. underlyinG the d.f.n... of Cl.rk Equip..nt company .r. not .ddr....d by d.f.ndant'. .xp.rt(.). Inde.d, w. look forw.rd to finalizing our pl.n. in thi. r.gard and concur with your d..ir. that di.covery proc..d in an ord.rly and .ch.dul.d fa.hion which will ben.fit all parti.. to th1a action. Of cour.., do not h..itat. to contact .e if you have any qu..tion., comm.nt. or concern.. I will b. out of the offic. until .t l...t F.bruary 26, 1996. Do not he.itat. to l.ave .. a ....ag. or contact Mr. B.ll if you have any qu..tion., co..ent. or conc.rn.. v.ry trul~ your., W _":I7~'"}J-S:"~-XZP~' WALTER H. SWAYZE, III WHI'" Dlctated but not proofraad. IlIIIftIM,IIIULO may I, tmWl DAVID L. urn MIOlAIL ..KIllIK .AIolIIA 0, lHUMAN aICIlWl A. IAllVlCI DAVID I. WllNUIU ANGINO & ROVNER, P. C, NIIOU C WON M1Cl1Alll NAYmKY . . UlwaENCI', IUONI DAWN L. 1fHNIN01 I1VHEH .._EN IClLOMON Z. DEVIKY fOIEPlI M. DOaIA W1Y.ll1H 'IHE BFST LAWYERS -IH- AMERICA JIQI.UIl C. AHOIHO 1lIII.I,IOVIIU F.bruary 28, 1996 Walt.r H. SW.YI., III, I.quir. Mar.hall, Denn.h.y, War~.r, Col.man , Go;;in 1145 Walnut str..t Philad.lphia PA 19103-4797 R., Ada.. v. Clark Mat.rial Handlin; and Forklift., Inc. Your Fil. No. 03052-00127 Dear P.t., To r..pond to your l.tt.r of F.bruary 22, 1996, I want.d to confirm that w. did ..nd our An.w.ra to Interro;atori.. and l..pon.. to R.qu..t for Production on F.bruary 16, 1996, and a..um. that th.y ar. alr.ady in your po....aion, If you do not have th.., contact .y ..cr.tary, Pa. Gill..pi., and .h. will ..nd .nother copy. My conc.rn. r.;ardin; Clark'. N.W Matt.r ar. all.viat.d to the .xt.nt w. will b. able to a;r.. to a di.cov.ry .tipulation which includ.. .n .;re...nt to provide u. with a .t.t..ant of th. d.f.n... which Clark will a..ert at trial. I would pr.fer the .t.t...nt b. in the fora of int.rro;atory ra.pon... to cont.ntion int.rro;atori.. r.th.r than l.avin; it to .. to d.t.rmin. which cont.ntion. .r. cov.r.d by .n .xp.rt r.port .nd which by interro;atory r..pon.... I want a .WIIIlary of wh.t you will actually pur.u. at trial in . .in;l. location for .... of r.f.r.nc. for both .y..lf and the court, .hould th. n..d .ri... In any ca.., w. can di.cu.. th... .att.r. on March 1. Aft.r th.t dat., I will fil. an .ppropri.t. r..pon.. to your N.W Matt.r b...d upon our .bility to work out a autually-a;r...bl. ..thod of r..olvin; .Y conc.rn.. I look forward to t.lkin; to you th.n. TSH/pj; cc, Willi.. P. Dou;la., ammo .101 NO~TH '~ONT IT~IIT, HA~~I"U~O. P" ITIIO.ITOI . 17m UH7I1 . ,All 1711') .....,0 . ANGINa & ROVNER, P. C, IlUOLI C.llUOIl MlQlAll.I. HAYmItY ........ .-uu.o may a. IMWl DAVID L UIII MICJI_ L IOIlI 'AMLAO,1lMWI LII11D III 1HEBfSTUWYBS -11I- AMWCA L.AWUNCI ., .,uONE DA","I.~I I'III'lIIIl L~1Il IllLOMOll Z. DlVIItY IOIIPll M, DOaIA IICIloUII A.I~ """ DAVID I, WlIIlUIU IICIloUII C. AI<<IlNO 1lIIL1.~ March 1', 111" W.lt.r H. swayz., III, I.quir. M~r.h.ll, ~nn.h.y, w.rn.r, Col."an , G099in 1145 W.lnut str..t Phil.d.lphia PA 1'103-4797 R.. Ad... v. Clark Mat.rial Handlin9 and Forklift., Inc. Your Fil. No. 03052-00127 Dear P.t.. I am g.tting a little conc.rn.d about the ab..nc. of concr.t. r..pon... from you in thi. CBl.. W. hav. had ..v.ral conv.r..tion. in which you a9r..d to g.t b.ck to .. to r..olv. out.tandin9 i..u.. in the pl.ading. and di.cov.ry. To dat., I have not r.c.iv.d your r..pon... to our Int.rr09.tori.. which w.r. ori9inally promil.d at the .nd of Janu.ry. W. fU.d our an.w.r. in the .iddl. of F.bruary, und.r.t.n4in9 your. would ba co.in9 back .hortly th.r..ft.r. It a aonth lat.r and I h.v. .till not r.c.iv.d th... Additionally, w. agr..d to a t.l.phon. conf.r.nc. on March 1.t to ..t up d.po.ition.. You al.o agr..d to cont.ct your cli.nt to obt.in th.ir con..nt to a stipulation r.quir1n9 you to an.w.r our cont.ntion InterrQ9.torl.. within a .p.ciU.d p.riod of till. follow1n9 our .xp.rt r.port. I c.ll.d you dur1n9 the fir.t w..k of March to follow up on th... ..tt.r.. I l.ft ay n... .nd .....9. on your voic. .ail. I have .till not h.ard fro. you. I h.v. r.c.iv.d today y.t another r.qu..t for an .uthorization froa .r cli.nt for you to obt.in hi. ..dic.l r.cord.. I do not appr.c at. di.cov.ry which flow. only in on. direction. I w111 not prov1d. .ny furth.r di.cov.ry until you cont.ct .. to r..olv. the out.tanding 1..u... Further, I will fU. prelimin.ry Obj.ction. to your N.w M.tt.r un1... you .ign an .ctua1 stipul.tion th.t I can fi1. with the Court. Pl.... c.ll .. no 1.t.r than March 25th. If not, I will fill appropriate .otion. and Obj.ction. with the Court which I will not 150Z9mO .101 HOIITH .II0HT ITII'IT, HAIIIIIIIUIIO, PA 1f110.1f01 . (711) aM1I1 . 'AX (711) .....'0 " . Waltar H. .way.a, III, Z.quir. Karoh 1', 111" .aga a withdraw until thay ar. argu.d or you provide .ub.tano. rather than proai... '1'IH/pj, eOI Willi.... Dougla., ;?4-~:'" Z.quir. ~. . . . , . I. T.I COURT or COMHOIf .LEAI or TIE snl oJUDlCIAL DUTIUCT-.lnnLVAlUA . rlWlKLI. conu IUlICI ****** Mia lAM DAllllaQIR aad ROllaT I CIVIL ACTIOI-LAW DAllllaGla, la., ber bUlbaDd, .LAIHlrrl -..- . Mo. A.D. 1"5 - 12 . lLOllON IIDV.Tall., IIC., I.". WlITI aad ICKlL'1 aILT, H DlrUDurr. I JURI TalAL DEMAlDID ORDER or COURT NOW, April 4, 1996, the above-captioned matter having come before the Court for oral argument on plaintiffs' motion to deem allegatione of the Complaint admitted and preliminary objections to new matter of defendant Blollom Induatries, Inc., pUrluant to Itipulation of counael for the parties, it is hereby ordered and decreed ae followl: 1/ The laid defendant .hall plead with factual .pecificitr to the mattera averred in paragraph I 5. through 9. of the Compla ntl 2/ The aaid defendant shall amend its New Hatter to allege the Ipecific facti upon wbich the defense(s) allerted tberein are baled/ and 3/ The Amended Complaint with New Hatter shall be filed by tbe .aid defendant within sixty (60) days of tbe date bereof. BY THE COURT, 1 ^ -L.:.. ~-\-. ~f. wfilf~ H. laye~ J. cc: Terry S. Hyman, Esquire, Attorney for Plaintiffs Paul W. Grego, Esquire, Attorney for Blossom Industries Thomas J. Duffy, Esquire, Attorney for I.J. White Gerhard P. Dietricb, Esquire, Attorney for Eckel's Bilt , . .. . . ,. ..... . .~'ot~,',1'.: . . . . '.': ~ ',l.' ~: ~':'" "'" , \.' IIBRIM DANZBERGER an' .0IERT DANZ8ERGER, 8R., bUlband, I IN TIll COURT or COMMON PLEAS I FJwnu.IN coUNTY, PENNSYLVANIA I I I CIVIL ACTION - tAW I I I NO. A.D. 1995-12 I I JURY nIAL DEMANDED bar plaintiffl v. BU)SSOM INDUSTRIES, INC., 1.07. WHITI and ICUL' 8 lILT, Def.ndanta pllD" AND NOW, till. day of , U95, upon con.ld.ration of Plalntlffl' pr.ll.1nary Obj.ction. to N.w Hatt.r and Hotion to De.. Al1a;at1on. of til. co.plaint adaltt.d, .aid aotlonl and obj.ctlon. ar. GRANTED. Defendant 810.'oa Indultd.., Inc., 1. d....d to bav, adaltt.d para;rapb. 2, 5, 6, 7, I, and t. Defendant 810.10. Indu.trlal' N'w Hatt.r, para;rapb. 40, 41, 43, 44, 45, 46, 47, 49-53, and 56-60, ar. b.r.by 8TRIC~N. IY THE COURT, 07. IIOM,m \.' '. . , KERIAM DANZBERGER an4 ROBERT DANZBERGER, SR., har hu.ban4, I IN THE COURT OF COMMON PLEAS I FRANKLIN COUNTY, PENNSYLVANIA I I I CIVIL ACTION - LAW I I I NO. A.D. 1"5-13 I I JURY '!'RIAL DDlANDZD plainUff. v. BLOSSOM INDUSTRIES, INC., I.J. WHITE an4 ECKEL'S BILT, Defen4ant. ~La.!II'1'!:" ::i~OIl 'l'O D..III C..'I'UII Il.I.L.a~'I'!OIl' a. ftII C!OIII.LUII'1' :~'I' :t.:'L~~~~~~uf~~~!I~~~ 'l'O lID D'I''I''' MOTION '1'0 D:E2M eERTAXN A.t.T.~CA.TIONS 0" 'I'll!: ~MPU'lNT ADMI'l'TED 1. Pa.R.C.P. 103', require. e Defen4ant in re.ponding to the factual allegation. of a COllplaint to admit or 4eny tbo.a fact. of vhich tha Defan4ant ha. knovle4ga. 3. In the Product Liability complaint filed in thi. actlon, in paragraph 3, it i. .paciflcally all.gad that Defen4ant Blo..olI regularly conduct. bu.ina.. in Franklln county, penn.ylvanla, an4 that it .uppllad the product. involva4 in the lav.ult to Plaintiff'. employer, Martin'. F..oua pa.try Shopp., Inc. 3. Paragraph. 5, 6, 7, I, an4 , all contain aUagaUon. that Defen4ant Blo..om va. ra.pon.ible for .upplylng, .alecUng and .uperviaing tha in.tallaUon of tha inatt'WIantaUty involved in the acc14ent. 4. Defandant 810..om'. An.wer to paragraph. 3, and 5-' i. a pro fona danial on the bad. 810..01D -lack. infonaUon or knovle4ga .ufficlent" to datarmlna if 810..om It.alf doe. bu.ina.. " , in p.M.ylv.n1a or what it did in aupplyin9 and a.ttin9 up · production lin. for which Ilo..oa r.c.iv.d .6,000,000, doll.r.. I. Def.nd.nt'. 1'01. in aupplyin9 the in.trua.nt.lity involv.d in the .ccid.nt 1a in f.ct unqu..tion.bly within Def.ndant'. knowl.d9. .nd undar the rul.. 110..0.'. .tt_pt to d.ny .... on the ~a.i. of . l.ck of knovl.d9. i. .quiv.l.nt to .n .dai..ion of the .11.9ation. . WHEREfORE, PlaintUf'. pr.y your Honorabl. court will d... Ilo..oa Indu.tri.. to have .dmitt.d the .11.9.tion. of the coapl.int in p.r.9r.ph. 2, .nd I-e. PRELIMINARY D&7ECTION '1'0 11ft .o....rER 6. P..R.C.P. 10n requir.. th.t wh.r. . p.rty pl..d. .n .ffirmativ. der.n.. in N.v Kattar, it .u.t .t.t. th. ..t..ri.l f.ct. upon which the d.f.n.. i. b...d. 7. Def.nd.nt'. N.V M.tt.r rai... .Uira.tiv. der.n... by .t.tin9 only conclu.ion. of l.v without .t.tin9 .ny .at.ri.l f.ct. und.rlyin9 the affiraativ. d.f.n.... .. Defendant ....rt. that the conduct of p.r.on., p.rti.. and .nt.iti.. oth.r than the Def.ndant. ar. r..pon.ibl. for Plaint.iff'. .ccid.nt without id.nt.ityin9 the p.rti.. or th.ir conduct. t. Def.ndant. .1.0 ....rt. th.t th. product -..y bav. b..n" ai.u..d or aub.tant.i.lly .It.r.d, th.t the It.atut. of Li.it.t.ion. h.. run, .nd that PlaintUf -.ay bav. b..n" n.9119.nt or -..y h.V." 2 a..ua.d the ~i.k, are iaprope~ pleadlni. not permltted under the Penn.ylvanla Rule. of Court. 10. Defendant'. Mew Matter turther claia. in 'arairaph 60 that Defendant did not dedi" or .anufacture the p~oduct in que.tion, vt.ich, coupled with Defendant'. refu.al to an.wer the alleiatlon of the Coaplalnt concemlni Blo..oa'. role in .upplyin; the product at ia.ue, rai... v.nulne concern. vbeth.~ 'laintiff ba. .ued the rl;ht entlty, without .ctually rai.ini that i..ue at the pleadin; .taie a. required under the Rule. of civil .rocedure. WHEREfORE, 'laintiff. aove to .t~ike all affirmative deten.e. pled in parairaph. 40, 41, 43-47, 4'-53, and 56-60. Re.pactfully .ubaltted, MlnNO , ROVNER, ..C. Terry .. I.D. 450 Ha~ ur;,'A 17110 (717) :131-6711 Attorney. tor 'laintiff. oatel 3 " " ~RTIPI~ATE OP .~RVICE AND IIOW, 1:hb Ln day of February, U1I6, I, pa.ala J. GiUe.pie, .n _ployea of An;ino . Rovner, P.c., do hereby cartify that I have .erved . ~rua .nd correct copy of the PlAIIITIrrS' MOTION '1'0 0111I CERTAIN ALLEGATIONS or THE COMPlAIIIT ADIIITTID AND PRlLIMINARY OBJECTIONS '1'0 HEW MATTER 01' DEFENDANT clAlUt MATIRtAL HANDLING COMPANY 1n 1:he United st.te. ..U, po.t.;e prepald .t H.rriabur;, penn.ylvania, .ddr....d .e follow.' Paul w. Gr.;O, E.quire POST' SCHILL, P.C. 101 North rront 8treet Harri.burv PA 17101 Attorn.y. for Defendant Indu.trie., Inc. Tho.a. J. Duffy, Eaquire DUrry AND QUINN The curti. C.nter, 8uite 1150 Indap.ndence .qu.re We.t Phil.delphi., PA 111106 Attorneye for Defendant I.J. White 110..0. len Heckathorn, E.quire P.O. loX 561 Rad Oak, TX 75154 Eckel'a IUt 7700 Harv.ll Itreet Fort Worth TX 76101 ~. "- ~ "..e ~~ IN THI COURT or COMMON PLIAS or CUMBIRLAND COUNTY, PINNSYLVANIA JOHN P. ADAMS and His Wife, SANDRA L. ADAMS CIVIL ACTION - LAW No. 95-5368 Civil Term vs. CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. ~U::':R:~ ~~I::P:=~, ~: ~S=I~:B,DI:=::;; ~~'::."!E~= -r:.~5ll:;= I. ISSUES PRESENTED. Whether the New Matter in the Answer of Defendant, Clark Material Handling Company should be stricken? suggested answer: no. II. DISCUSSIONS. Plaintiffs' Preliminary Objections seeking to strike the New Matter of defendant, Clark Material Handling Company (hereafter "Clark"), should be denied, because plaintiffs have filed a Motion to Amend their complaint. If this Honorable Court grants plaintiffs leave to amend their complaint, Clark's present Answer will be without import or meaning in the case, and plaintiffs' Preliminary Objections to Clark's New Matter in its Answer will be moot, In the alternative, Clark requests that this Court defer resolution of plaintiffs' preliminary Objections until a decision is made OIl plaintiffs' Motion to Amend their Complaint. If this Court denies plaintiffs' Motion to Amend their complaint and proceeds to consider the merits of plaintiffs' preliminary objections, several points should be noted. First, plaintiffs have objected to paragraphs 22, 23, 24, 25, 26, 27, 28, 29, 31, 34, 35, 37 and 38. Paragraphs 22, 28 and 38 are not at issue. Clark hereby withdraws paragraph 38 concerning the reservation of rights to raise additional defenses. Paragraph 22, alleging that the plaintiffs have failed to state a claim upon which relief can be granted, is a defense which cannot be waived, according to Pa.R.C.P. 1032(a) , and can be raised at any time. Therefore, whether the defense appears in Clark's New Matter or not is immaterial, and plaintiffs' objection to is moot. Likewise, any objection to paragraph 28, raising the defense of the assumption of the risk, is moot. Pa.R.C.P. 1030(b) states that the affirmative defense of assumption of the risk need not pleaded. The Note accompanying Rule 1030 states also that, if the affirmative defense of assumption of the risk is pleaded, it shall be deemed denied, and a plaintiff need not reply. Moreover, the defense of assumption of the risk cannot be waived. Therefore, plaintiffs' preliminary objections against paragraph 28 are without effect, leaving plaintiffs' objections to 10 -2- paragraphs of Clark's New Matter-paragraphs 23, 24, 25, 26, 27, 29, 31, 34, 35 and 37. These 10 affirmative defenses scarcely constitute "every conceivable defense" as plaintiffs allege. (Plaintiffs' Memorandum at p. 4). Moreover, some more of these paragraphs may also be eliminated without deciding the merits of plaintiffs' general argument based on Connor v. Alleqhenv General Hosoital, 501 Pa, 306, 461 A.2d 600 (1983). Plaintiffs imply that, because Pa.R.C.P. 1019(a) states that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form," every affirmative defense must be based on material facts. However, no such requirement is stated anywhere in the Pennsylvania Rules of Civil Procedure, and the common sense and legal experience of this Court will confirm that some affirmative defenses are not based on material facts. For example, paragraph 37 of Clark's New Matter, alleging that "ld]elay damages are inapplicable and unconstitutional," is clearly a legal conclusion which has nothing to do with "material facts." It is equally obvious that paragraph 37 cannot be stricken without severe prejudice to Clark, because under Rule 1032(a), that defense would be waived if it did not appear in the New Matter. This danger was illustrated in regard to delay damages in the case of Craiq V. Maqee Memorial Rehabilitation center, 512 Pa, 60, 515 A.2d 1350 (1986), when the Pennsylvania Supreme Court -3- ruled that Penn~ylvania Rule of Civil Procedure 238 should be suspended. The Supreme Court also ruled that parties who had not already asserted attacks on Rule 238 could not later raise them. Therefore, it is clear that to avoid waiver of purely legal defenses, ~ defendant must raise them in New Matter. Plaintiffs here cannot argue that such defenses must be stricken pursuant to Rule 1019(a), because by their very nature, they are not based on material facts, Therefore, plaintiffs' arguments set forth in the Preliminary Objections do not apply to paragraph 37. Likewise, plaintiffs' Preliminary Objections did not apply to paragraphs 29, 30 and 31. Those paragraphs clearly contain legal defenses based on doctrines set forth in the seminal Pennsylvania case on strict products liability law, Azzarello v. Black Brothers Co.. Inc., 480 Pa, 547, 391 A.2d 1020 (1978), and their inclusion in Clark's New Matter is necessary to prevent waiver of such legal arguments. The court in one of the cases cited by plaintiffs in their Memorandum, Fitzqerald V. Kaquvutan, 18 D&C 4th (Adams Co. 1993) noted that a distinctions between defenses must be recognized: certain defenses will require more specificity than others. For example, alleging failure to state a cause of action, raising the statute of limitations, on denying negligence requires no further averments. However, pleading contributorily negligence, intervening and superseding acts of others, assumption of the risk, comparative negligence and release requires more specificity. -4- Moreover, plaintiffs' concerns about conducting discovery on the supposed multitude of affirmative defenses is not applicable to purely legal defenses which have no real basis of material fact but nonetheless must be raised to prevent waiver. One can only assume that plaintiffs do not intend to conduct discovery on whether Rule 238 is unconstitutional. Therefore, paragraphs 29, 30, 31 and 37 should be removed from this Court's consideration as well. The Court is now confronted with paragraphs 23, 24, 25, 26, 27, 34 and 35. Again, the seven paragraphs hardly constitute a multitude of affirmative defenses intended to blindside plaintiff at trial. Moreover, of the seven, Clark contends that paragraphs 34 and 35, if they cannot be considered purely legal averments, do contain all possible allegations of material fact concerning warnings on the product in question. Therefore, these paragraphs should also be eliminated from the Court's consideration. The only paragraphs in the New Matter to which plaintiffs' preliminary objections arguably apply are paragraphs 23, 24, 25 and 26 concerning causation and misuse of product, since they are based on material facts but allege no specific facts. However, these paragraphs should not be stricken for a number of reasons. First of all, plaintiffs have cited no appellate decision which has accepted the argument that the comment by the pennsylvania supreme Court in Connor v. Alleohenv General HOBoital, 501 Pa, 306. 461 A.2d 600 (19831 about a specific -5- allegation in a specific Complaint also provides a basis for striking Clark's New Matter, The decisions by various courts of common pleas which have accepted that argument are not binding on this Court, and Clark respectfully contends that decisions of those courts are not correct. Any comparisons between the boilerplate allegation in the Connor case and the New Matter in paragraphs 23, 24, 25 and 26 are not appropriate. The boilerplate allegation in Connor was that the defendants were "otherwise negligent." Obviously, it would be impossible for a defendant to guess what the plaintiff meant by an openended phrase like "otherwise negligent" and conduct discovery in that regard. However, in the present case, paragraphs 23, 24 and 25 raise the clear issue that factors other from the product, caused the plaintiffs' injuries. Unlike the allegations in the Connor case, those allegations are sufficiently specific to identify areas of discovery, investigation and expert testimony for plaintiffs. Likewise, the issues raised by paragraphs 26 and 27 of the New Matter concerning substantial change and misuse of the product clearly identify areas of discovery, investigation and expert testimony, unlike the allsgations in Connor, Indeed, given plaintiffs' burden of proof in products liability cases, the issues raised in paragraphs 23, 24 and 25 at least would be issues of discovery and investigation for plaintiff, even if Clark was not constrained to raise those defenses to prevent waiver. -6- ,'co -7- Therefore, the Connor case should not be deemed controlling in this context. Furthermore, the cases cited by plaintiffs acknowledged the unfairness of forcing defendants to supply within twenty (20) days of the service of t.he Complaint material facts on which to base waivable affirmative defenses. Although the courts in the cases cited by plaintiffs in their Memorandum chose to apply the Connor rationale, the courts also allowed defendants leave to replead the New Matter. In the case of Allen v. Lioson, D.C. 4th 390 (Lycoming Co. 1990), the court allowed defendants sixty (60) days from the date of the Order or thirty (30) days before the pre-trial conference whatever occurred first to replead the New Matter. In none of the cases cited by plaintiffs did the courts simply strike the New Matter without leave to amend as requested by plaintiffs in the present case. Besides the inequity of the time constraint on defendants to supply material facts in 20 days, a greater unfairness is placing defendants between the rock of supplying material facts as a basis for all allegations of New Matter and the hard place of waiving affirmative defenses which are not raised. The Court in Fitzaerald v. Kaauvutan, suora implicitly recognized this problem I How this issue has been addressed by other Courts is unknown. Without further direction and guidelines, however, I am inclined to follow the rules and be more liberal in allowing amendment upon discovery affirmative defenses. BecaU8e affirmative defenses have no statute of limitation problems a defendant should be able to raise such defenses when they become known. Certainly, one might not be able to plead the defense within twenty (20) days for which adequate time to investigate was unavailable, I do not believe the waiver provisions of Pa.R.C.P. 1032 applv in such situations. As is well known the rules allow for liberal amendment at any stage of the pleadings. Pa.R,C,P. 1033 and 126. Therefore, as defenses become known. defendant will be granted a leave to amend. where one fails to plead a knowni: defen~e waiver mioht result but otherwise it ~hQM_d nQt Q~ ~ cause for undue concern at this staoe of the pleadinos. (Emphasis added) . (18 D.& C. 4th at 5-61 . In the absence of appellate law on this issue, the Fitzoerald court's bland assurance that it did "believe" that waiver would not occur in these situations is hardly comforting. A defendant that does not initially raise an affirmative defense because material facts are lacking can only hope that, when the defendant discovers material facts, the trial court will distinguish between "known" and "unknown" defenses and allow amendment. Therefore, application of the Connor rule in these situations places defendants in an unfairly difficult position. Moreover, not all common pleas courts have applied Connor to these situations. As the Fitzoerald court noted, in a case which was not cited by plaintiffs, Gotwalt v. York Hospital, 102 York L.R. 151 (1988), the trial court denied preliminary objections to New Matter because the facts within the knowledge of both parties made the defenses raised predictable. The Gotwalt court also noted that a disparity of time for plaintiffs and defendants to -8- prepare their initial pleadings existed and that Pa.R.C.P. 126 allowed liberal construction of the pleading rules. The same rationale should be applied here. Not only ie the ~onnor ruling inapplicable because it is unfair in this context, its application is also unnecessary. In the present case, the defenses raised by Clark in regard to causation and use of the product can hardly be termed surprising. Moreover, despite plaintiffs' claim in their Memorandum that Clark had ample time to inspect the vehicle and review documents, it is equally obvious that depositions of plaintiffs and witnesses will be necessary to fully address the issues of causation and use of the product. Indeed, since husband plaintiff has not yet been deposed, plaintiffs at this point most likely have more information than Clark about these issues. In accordance with the dissenting opinion in the Allen v. LiDson decision, Clark contends that if any real problems do exist for plaintiffs in regard to surprise and prejudice, they can be more easily and fairly addressed at the discovery stage, rather than at the pleading stage. B D.C. 4th at 397-402. plaintiffs in their Memorandum have already named a specific discovery tool to force Clark to identify the factual bases for their defenses regarding causation and product use, i.e., contention Interrogatories. If Clark is not responsive to such discovery, the Rules of Civil Procedure provide plaintiffs with methods to force Clark to provide the requested information and -9- also with appropriate sanctions if Clark persists in failing to provide properly requested and discoverable information. In fact, as noted in their Memorandum, plaintiffs proposed a StipUlation in regard to contention Interrogatories. The Stipulation was acceptable in theory. obviously, however, clark could not agree to such a Stipulation before it reviewed the specific contention Interrogatories. Otherwise. Clark would commit itself to answering potentially unfair and objectionable interrogatories. Just as obviously, however, plaintiffs cannot provide Clark with contention Interrogatories to review at the pleading stage, because proper Contention Interrogatories cannot be prepared until discovery has been substantially completed. At this stage of the case, it is clear that plaintiffs are not all prejudiced by inclusion of these affirmative defenses, unlike Clark which faces a danger of waiver if the defenses are not included now. No substantive reason exists to strike Clark's defenses regarding causation and produce use, particularly in light of Pa.R.C.P. 126 concerning liberal and construction and application of the procedural rules. As noted earlier, no appellate law exists on this issue, and as the court in Fitzoerald noted, research showed "few situations" where this issue is considered. The reason for the dearth of case law is that few plaintiffs raise the issue because no real prejudice exists. The same is true in the present case. The ostensibly reasonable tone of plaintiffs' self-serving -10- correspondence notwithstanding, plaintiffs are simply using the procedural rules in an attempt to weaken Clark's substantive defenses. However, a close reading of Clark's New Matter and of the applicable Rules of civil procedure shows that no basis exists for plaintiffs' arguments, and their Preliminary Objections should be denied. WHEREFORE, defendant, Clark Material Handling Co., requests this Honorable Court to deny plaintiffs' Motion and Preliminary Objections. MARSHALL, DENNEHEY, WARNER, COLEMAN AND GOGGIN I ~ ~L_~ ~ G~~~,J'-Z VO~ LOUIS BELL, ESQUIRE WALTER H. SWAYZE, III, ESQUIRE Attorneys for Defendant, Clark Material Handling Co. BY: l052.107._NR.10SIOl -11- r /Vi.\" ~~J...R- I 'I, Lu ClU,tIl4t4J S SAN M. WILLIAMS . CBRTIFICATB OF SBRVICB I, Susan M. Williams, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this 24th day of May, 1996 served a copy of the foregoing document via First Class united States mail, postage prepaid as follows: Terry S. Hyman, Esquire ANGINO & ROVNER 4503 North Front Street Harrisburg, PA 17110 William P. Douglas, Esquire DOUGLAS, DOUGLAS & DOUGLAS 27 West High Street P.O. Box 261 Carlisle, PA 17013-0261 JOHN P. ADAMS and His Wife, SANDRA L. ADAMS, PLAINTIFFS V. IN THE COURT OF COMMON PlEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CLARK MATERIAL HANDUNG COMPANY AND FORKLIFTS, INC., DEFENDANTS , . : 95-5368 CIVIL TERM ~R OF COURT AND NOW, this 14th day of June, 1996, the preliminary objections of plalntJtfa to the new matter of defendant, Clark Material Handling Company filed In I'8lpon18 to plalntltfl' complaint filed on October 10, 1995, and plalntlffl' motion to deem allegations In the complaint admitted, ARE DISMISSED as moot becau.. plalntJtfa have filed an amended complaint on June 1 1, 1996. ,1/1 By the Cou~/,/ / .. , \ Edgar B, Bayley, J. Teny S. Hyman, Elqulre For Plalntiffl Waltif' H. Swayze, III, Esquire For Clark Material Handling Company William p, Douglas, Esquire For For1dlftl, lno, :... f'...J...:..... (,...(:~l,/.... hll'l{trlo . -II ..!I.l'. ALED-OFFlCE OF w,:: r r'yrll"! !')T^,rIY ~D 96 Jlllll7 III I:!i I CUtt.,IU1V;;;) \.lUIi; ~ PEN~~SYLVmv\ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOHN P. ADAMS and SANDRA L. ADAMS, PLAINTIFFS CIVIL ACTION - LAW NO. 95-5368 CIVIL TERM v. CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC., DEFENDANTS JURY TRIAw DEMANDED pRDBR AND NOW, this day of , 1996, upon consideration of the preliminary Objections of Defendant Clark Material Handling Company, and any opposition thereto, it is hereby ORDERED and DECREED that subparagraph 16(n) of Plaintiffs' Amended Complaint is hereby stricken with prejudice. BY THE COURT I J. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOHN P. ADAMS and SANDRA L. ADAMS, PLAINTIFFS CIVIL ACTION - LAW NO. 95-5368 CIVIL TERM v. CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC., DEFENDANTS JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OP DBPBNDANT CLARJt MATERIAL HANDLING COMPANY 1. Defendant, Clark Material Handling Company (hereinafter referred to as "Moving Defendant"), was served with a copy of Plaintiffs' Amended Complaint on June 13, 1996. 2. Plaintiffs' allegations arise out an alleged incident on March 2, 1994, allegedly involving a forklift. 3. In Count I of Plaintiffs' Amended Complaint, a true and correct copy of which is attached hereto as Exhibit "A", Plaintiffs have articulated a theory of negligence and strict liability against Moving Defendant, 4. Subparagraph 16(n) of Plaintiffs' Amended Complaint purports to state with particularity the manner in which Moving Defendant was allegedly negligent and/or strictly liable I " (n) otherwise failing to make the vehicle safe for its intended purpose. II (~Subparagraph 16(n) of Plaintiffs' Amended Complaint. ) 5. This portion of Plaintiffs' Amended Complaint should be stricken for its failure to comply with Pa.R.C.P. 1028 (a) (3) which require pleading with factual particularity and specificity. 6. This subparagraph is objectional and must be stricken pursuant to the Connor v. Alleqhenv General Hosoital, 501 Pa, 306, 461 A.2d 600 (19B3) and its progeny. WHEREFORE, Moving Defendant, Clark Material Handling Company, for the reasons stated above, hereby requests that this Honorable Court grant their preliminary Objections and strike off Subparagraph 16(n) of Plaintiffs' Amended Complaint with prejudice. DATEI-::I~~ll I~~\" MARSHALL, DENNEHEY, WARNER ~=-10c::'\l.c BY I ~ott..: LOUIS BELL, ESQ. WALTER H. SWAYZE, III, ESQ. Attorney for Defendant, Clark Material Handling Company -2- JOHN P. ADAMS, and His Wife, SANDRA L. ADAMS, plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVAllIA CIVIL ACTION - LAW v. NO. 95-5368 CIVIL TERM CLARK MATERIAL HANDLING COMPANY AND FOR!< LIFTS, INC. Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do 80 the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU 00 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, 4th Fl. cumberland county Courthouse one Courthouse square carlisle, PA 17013 240-6200 JOHN P. ADAMS, and His Wife, SANDRA L. ADAMS, plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. 95-5368 CIVIL TERM CLARK MATERIAL HANDLING COMPANY AND FORX LIFTS, INC. Defendants JURY TRIAL DEMANDED NOTICIA Le han demandado a usted en la corte. S1 usted quiere defenderse de estas demandas expuestas en las paginas siquientes, uBted tiene viente (30) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia eBcrita 0 en persona 0 por abogado y archivar en la corte en forma BBcrita SUB defensas 0 sus objectiones alas demandas en contra de BU persona. Sea avisado que si usted no se defiende, la corte tomara .edidas y puede entrar una orden ccntra usted sin previa .viBo 0 notificacion y por cualquier queja 0 alivio que es pedido en 1. peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INHEDIATAMENTA. SI NO TIENE ABODAGO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DlRECCION SE ENCUENTRA EBCRITA ABAJO PARA AVERIGUAR OONDE BE PUEDE CONSEGUIR ASIBTENCIA LEGAL. Court Administrator, 4th Fl. Cumberland County Courthouse One Courthouse square Carlisle, PA 17013 240-6200 . JOHN P. ADAMS, and His Wif., SANDRA L. ADAMS, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW v. . . NO. 95-5368 CIVIL TERM CLARK MATERIAL HANDLING COMPANY AND FORI<LIFTS, INC. Defendants . . . . JURY TRIAL DEMANDED UIltmlD COMPLAINT 1. Plaintiffs John P. and Sandra L. Adams are adults r..iding in Mechanicsburg, cumbsrland county, Pennsylvania. 2. Defendant Clark Haterial Handling company is a profit- making corporation engaged in the manufacture, design, distribution and .ales of forklift trucks which regularly sells products and otherwi.e conducts business in cumberland county, Penneylvania. 3. Defendant Forklifts, Inc. is a corporation specializing in the .al., distribution and .ervicing of Clark fork lift truck. who.. main office is located at 3925 Trindle Road, Camp Hill, cumberland County, Pennsylvania. 4. Fork Lifts, Inc. at all times relative to this case was an authorhed duler and agent of Defendant Clark Material Handling Company. "IS'/PJG 2 5. On March 2, 1994, Plaintiff John Adams was engaged in his normal occupation as an assembly line worker at Valk ManUfacturing located on Carlisle Pike, CUmberland County, Pennsylvania. 6. As part of his job, Mr. Adams found it necessary to use a Clark forklift, model C500-S80, type LP, serial number 685- 00287950KOF, ID number AU 1537 industrial truck '4410804. 7. At that time and place Mr. Adams used the lift truck to place a large, heavy snowplow blade on a roller table. Mr. Adams then drove the forklift truck to an area across from the table, got off of the truck, and placed it in neutral. 8. After walking over to the work area at the roller table, a distance of approximately 20 feet, Mr. Adams turned around to see the driverless fork lift truck coming towards him in rever.e. Having no time to avoid the oncominq vehicle, Mr. Adams got cauqht between the heavy counterweiqht on the rear of the Clark lift truck and the stationary roller table, fracturinq his pelvis and severinq his urethra. 9. As a dir~ct result of his accident, Mr. Adams was rushed to Holy Spirit Hospital where he was found to have a severely lacerated urethra and evulsion of the prostate, multiple fractures of the pelvis and pubio bones, and a hematoma of the pelvis. 10. As a direct result of his injuries, Hr. Adams underwent sivnificant medical treatment, includinv survical repair of his .evered urethra, for which he incurred medical expen.e. and may well incur additional medical expenses in the future. 11. AB a direct rosult of his injuries, Hr. Adams was unable to work for a period in excess of four months and has Buffered a permanent diminution of his earninv capacity. 12. As a direct result of his accident, Mr. Adams incurred medical bills approachinv $15,000 and wave losses in excess of $6,000. 13. As a direct result of his injuries, Hr. Adams has in the put Buffered acute and diBablinv pain and will in the future, Buffer pain, anxiety and sUfferinv. 14. As a direct result of her husband'Binjuries, Plaintiff Sandra L. Adams has BUffered a loss of consortium, advice, society and comfort. COURT I JOB .. aDUS UD 8UDD L. aDUUJ V. CLllUt HATBRIAL IlAHDLIHCI COHl'aMY 8TRICT LIABILITY AND ..ClLIOBNeB 1~. Paragraphs 1 through 14 are incorporated herein by reference. 3 16. Defendant Clark Material Handling company is striotly liable to Plaintiff under 1402A of the Restatement (Second) of Torts and under cOlllllon law negligence for the damages alleged herein which were direotly and proximally oaused by the Clark forklift truck identified above, whioh was defeotive and negligently designed in: (a) malfunotioning in the absence of a reasonable seoondary oause when it went into reverse without a driver present on the vehicle; (b) failing to have any operator presence controle on the forklift, (c) constructing the forward/neutral/reverse shift levar, linkage and hydraulic oontrolsyetem without separate, distinot detents for forward, reverse and neutral, (d) constructing the shift lever, shift linkage and hydraulic oontrol system in a such a manner that the operator could place the vehiole in what appeared to be the neutral position when tha vehicle, in faot, was in reverse, (e) designing and constructing the shift lever, shift linkage and hydraulio control system whioh would alloW the hydraulic control system in such a manner that the hydraulio oylinder oould receive hydraulio fluid in the reverse position at a slow rate, resulting in a delayed movement of the vehicle in the reverse direction; 4 (f) failing to provide a shift system which had distinct positions for forward, neutral, and reversel (g) failing to provide a control system in which the shift lever, shift linkage or hydraulic control system could be held in the neutral position; (h) failing to provide adequate warnings to apprise the operator that the vehicle could, or did have a tendency to, move in a reverae direction after a period of delay and while the operator could be off of the vehiclel (i) failing to provide accurate instructions regarding the need to adjust the shift linkage, shift lever and/or the hydraulic control system to avoid delayed reverse movement of the lift truck without a rider present I (j) failing to provide adequate operator instruotions regarding the placement of the shift lever in the neutral or rever.e position and the consequence of failing to do so accurately I (k) flesigning the system such that there was or could be too much free play in the neutral-reverse positions; (1) utilizing an emergency brake system which could and did regularly come out of adjustment or could be maladjusted by an individual operator, rather than utilizing a fixed system; (m) failing to utilize and incorporate an automatic parking brake on to the vehiole or on to the vehicle's pedalsl 5 (n) otherwise failing to make the vehicle safe for its intended purpose. WHEREFOqE, Plaintiff prays for judgment against Defendant in an amount if' excess of Twenty Five Thousand ($25,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COlJ1fT II JOBlf 1'. ADMS AIm BUDD L. ADMS V. rORltLIrTB, INC. STRICT LIABILITY AND NEGLIGBNCB 17. Paragraphs 1 through 16 and Count I are incorporated by reference. lB. Defendant Forklifts, Inc. as the seller of the fork lift involved in the incident is strictly liable under 402A of the Restatement of Torts for the defects alleged in paragraph 16 above and incorporated herein by reference. 19. Defendant Forklifts, Inc., by contract, r~gularly conducted planned maintenance as well as repairs of the subject forklift. 20. Defendant Fork Lifts, Inc. is liable to Plaintiff for its negligence in: (a) failing to inspect and detect excess free play and maladjustments in the forward/neutral/reverse shift lever, shift linkage and/or hydraulic control system of the subject lift truck; 6 \ (b) failinq to properly adjust the free play in the neutral reverse positions of the shift lever, linkaqe and hydraulic control aystsm/ (c) failin') to alert, instruct or warn Plaintiff's employer or Plaintiff John Adams of the need to take precautions with the placement of the vehicle's shift mechanism in neutral or reverse, (d) failinq to properly adjust the emerqency/parkinq brake on the vehicle/ (e) failinq to alert, advise, instruct or warn Plaintiff's employer or Plaintiff of the danger that delayed reverse movement could occur when no operator was in the vehicle/ (f) failing to inspect or adjust the fork lift so as to prevent it from enqaqinq in the reverse position while an operator va. not preaent in the seat, 21. Defendant i. alao liable under the Doctrine of Rea Ipaa Loquitur as Defendant Forklifts had exclusive control over the .aintenance and adjustments of the subject forklift shift .echanism, and the vehicle could only go into reverse without a rider present if Defendant had been neqligent in its maintenance of the fork lift truck. WHEREFORE, Plaintiff prays for judqment against Defendant in an ..ount in exceas of Twenty Five Thousand ($25,000) Dollars, 7 exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. ANGINO , ROVNER, P.C. -- an, Esqu re .D. No. 807 4503 N. Front street Harrisburg, PA 17110 (717) 238-'6791 counsel for Plaintiff DATED: 6/10/96 8 CERTIFICATE OF SERVICE AND NOW, this loth day of June, 1996, I, Pamela J. MCClellan, an employee of Anqino , Rovner, P.C., do hereby certify that I have .erved a true and oorrect copy of tiln aJllIIDID COMPLaIIIT in the United states mail, poataqe prepaid at Harrisburq, Pennsylvania, addressed as follows: Walter H. swayze, III, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN , GOGGIN 1845 Walnut Street Philadelphia PA 19103-4797 Attorneys for Defendant Clark Material Handlinq Company William P. Douqlas, Esquire DOUGLAS, DOUGLAS , DOUGLAS P.O. Box 261 27 West Hiqh street Carlisle PA 17013-0261 Attorneys for Defendant Forklifts, Inc. P~~~~ CERTIFICATE OF SERVICE I, Susan M. Williams, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this 1st day of July, 1996 served a copy of the foregoing document via First Class United States mail, postage prepaid as follows I Terry S. Hyman, Esquire ANGINO & ROVNER 4503 North Front street Harrisburg, PA 17110 William P. Douglas, Esquire DOUGLAS, DOUGLAS & DOUGLAS 27 West High Street P.O. Box 261 Carlisle, PA 17013-0261 S SUSAN M. WILLIAMS \. lr. '- !~ .:J " co :;:) " ,~.; ~-. ";8 'f':; -.:; " ' -. r,c ,,::/ Irl:; . ~;J ~' ;jil) [1 ""l ~ _~ u.. l5 0.0 ..i (1'0 'J ... .. JOHN P. ADAMS and his wife SANDRA L. ADAMS, V. CLARK MATERIAL HANDLING: COMPANY and FORKLIFTS, INC.: Defendanls IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. CIVIL ACTION LAW NO. 95-5368 CIVIL TERM t\NSWER T~ ~~::'~:D COMPLAINT AND NEW MATTER DIRECTED TO I AND DEFENDANT. CLARK MATERIAL I. Admilled. 2. Admllled. 3. Admilled. 4. Denied as slaled. The defendant. Forklifts. Inc" hereinafter called Forklifts. is a franchised dealel'lihip for Clark Equipment. Agency is specifically denied unless II is delennined a.~ a mailer of law Ihal a franchise dealership is an agenl, 5. Admllled. 6. Admilled. 7,1014. Denied pursuanllo Pu. R.C.P. 1029 (el COUNT I ~ohn P. Adams and Sandra L. Adams v. Clark Material Handlin. Company Strld Liability and NeRlhlence 15, - 16. These parugraphs apply 10 anolher defendant. COUN1' II John P. Adams and Sandra L. Adams v. (<'orkllfts. Inc. Strld Liability and Nelllhlence 17. to 20, Denied pursuunllo Pu, RoC. P. 1029 (el. 21. Denied. The Doctrine of Res Ipsa Loquitur Is Irrelevanlund nOlapplicable due 10 lhe fucllhul Forklifts. Inc., did nul huve sole conlrol of Ihe inslnunenlullly. The instrumentalily in question wus controlled hy Ihe employer of lhe plaintiff. It Is udmllled Ihut Forklifts. Inc.. performed service on lhe forklift lnlck. WHEREFORE. Ills pruyed thul judgment be entered ugulnM the plulntiff und In fuvor of the defendunt. Forklifts. Inc,. NEW MATI'ER AGAINST THE PLAINTIFFS 22. All of lhe plulnlifrs ulleged injuries und dumuges ure us u direct und proxlmule resuh of the pluintifrs own negligence in the l11unner in which he ucled on the duy of the Incidenl. in thutthe pluintiff opcruted lhe lift lrock lu question In u cureless und negligent munner, due to his fullure to turn the lift lruck off before he dismounted the vehicle. und in fuiling to selthe purklng broke. 23. All or purt of lhe pluintifrs ulleged injuries und dumuges ure burred by the operation of the Comparutive Negligence Act of the Coml11onweahh of Pennsylvanlu. 24. The plulntifrs claims for injuries lInd dumuges are barred by opcrution 0 the Doctrine of Assumption of Risk. in lllUtthe pluintlff placed himself in a position of possible Injury. 25. All of the plalntifrs alleged injuries und damages lire u direct und proxlmute resuh of the negllgentllclions und/or inuction's of parties other than Defendant. Forklifts. Inc. WHEREFORE, It Is pruyed lhat judgment be entered In favor of Defendunt. Forklifts. Inc,. and against the plaintiffs. (liEW MATTE_~~~~~~~!!~~ENDANT. CLARK MATERIAf, HANDLING ~QM~~lI!!!.E!lMll~NT TO PA. R.C.P. Section 21S1ldl 26. In tbe evcntlhe pluintiff should prove said allegallons In the Compluint. the Defendant. Clark Material Hundling Company. Is solely liable to the pluinllff; or. In the alternative, jointly und severully liable wllh Defendant. Forklifts. Inc.. and/or lIuble to Defendant. Forklifts. Inc.. for contribution and Indemnlficutlon. WHEREFORE. Defendunl. Forklifts. Inc.. demands judgment ugainst Defendant. Clark Material Hundling Company. for sole liubiHty to lhe plaintiff: or. in the ahemutive. jointly and severully liable with Defendant, Forklifts, lnc,. or In the further altemutive. Huble over to Defendunt. Forklifts. Inc.. for contribution and/or indemnification. DOUGLAS. DOUG By WiIllul11 P. Douglus Allomey for Defendu"t. Furkllfts, In '. A......IDA VIT Commonweallh of Pennsylvania Counly of Cumberland George f. Lance, being duly sworn according 10 law, deposes and says Ihal he Is lhe Vice President of forklifts, Inc.. and that Ih .averments In the within pleading are true and correct, to the best of signer's knowlcdge in onllalion a~~ belier~ . . ~ George f. Lancc ~ Swom to and subscribed be ore me this /'1 dat~f. ,J,. (t..A.t..v-L )1 \ c1' -: ~. Nolllry ,1996. ~SeIl Nn8MC",~PIdD Ce""I'IbU.~OUtY "", r.,...':""',E>qIi1lG.kJIyl., 11197 . . 1')- ,"ell:. ,I; , PI,;: ',1 . Jk-'lJJtc.. (..\' I I' .- h,"~ ; . . -,' I,' . ...- .---.-.-.-...-...-. .. ~ \' I ~ .' ',t,.. " ",.", , j. I ) ! ....... ' ;..1.....,.,...1._.' I. '.1 COUR' O~ COKKO. PLBAB O~ CUIUIDI.UD couny, P...IYLVUIA JOHN P. ADAMS and His wife, SANDRA L. ADAMS CIVIL ACTION - LAW No. 95-5368 civil Term VB. CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC. u.... O~ DlrlllDurr, CLDIe MAT.RIAL IIAIlDLI.G COIIPUIY, 'l'O 'LAInI~~.' UUOID COMPLAIn .1'1'. ... IIA'l"fD 1. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 1 of plaintiffs' Amended complaint. Therefore, said averments are denied. 2. Admitted in part; denied in part. It is admitted only that defendant, Clark Material Handling company, is a corporation engaged in the manufacture, design, distribution and sales of industrial material handling equipment. It is denied that answering defendant regularly sells products and otherwise conducts business in Cumberland county, Pennsylvania and/or that the product at issue in this matter was designed, manufactured and sold by answering defendant. strict proof is demanded at trial. 3. To the extent the averments set forth in paragraph 3 of plaintiffs' Amended complaint are directed to a party other . 1~"I' , '. than an.wering defendant, no respon.e is required under the Pennsylvania Rule. of civil procedure. 4. Denied. To the extent the allegations set forth in paragraph 4 of plaintiffs' Amended complaint constitute conolu.ion. of law, no re.pon.e i. required under the Penn.ylvania Rule. of civil Procedure. By way of further re.pon.e, it i. 8peoifioally denied that defendant, Forklifts, Ino., ie an agent of defendant, Clark Material Handling company; Forklift., Ino. and clark Material Handling company are separate jural entities and allegation8 as to any agenoy relationship are .peoifioellY denied. striot proof i. demanded at trial. ~. Denied. After rea80nable investigation, answering defendant i. without knowledge or information sufficient to form a belief a. to the truth of the averments set forth in paragraph 5 of plaintiffS' Amended complaint. striot proof is demanded at trial. 6. Denied. Aftsr rsasonable inve.tigation, an.wering defendant i. without knowledge or information suffioient to form a belief a. to the truth of the averments set forth in paragraph 6 of plaintiffs' Amended Complaint. Accordingly, said averments are speoificallY denied. By way of further response, any and all allegation. aa to the identity of the forklift inoluding its make and model are speoifioally denied a& plaintiffs are left to their proof.. striot proof is demanded at trial. 7. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form -2- a belief as to the truth of the averments set forth in paragraph 7 of plaintiffS' Amended Complaint. strict proof is demanded at trial. 8. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief a. to the truth of the averments set forth in paragraph 8 of plaintiffs' Amended Complaint. Strict proof is demanded at trial. 9. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 9 of plaintiffs' Amended Complaint, therefore, said averments are .peoifically denied. By way of further response, if plaintiff .u.tained injuries as alleged including the injuries set forth in paragraph 9 of plaintiffs' Amended Complaint, answering defendant denie. any and all liability therefore. strict proof is demanded at trial. 10. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 10 of plaintiffs' Amended Complaint, therefore, said averments are speoifioally denied. By way of further response, if plaintiff sustained injuries as alleged in paragraph 10 of plaintiffs' Amended Complaint, and/or plaintiff will incur additional medical expenses in the future, answering defendant -3- denie. any and all liability for palt, preaent and future injurie.. striot proof is demanded at trial. 11. Oenied. After rea.onable investigation, answering defendant i. without knowledge or information sufficient to form a belief a. to the truth of the averments set forth in paragraph 11 of plaintiff.' A.ended complaint, therefore, said averment. ara denied. By way of further re.ponse, it is specifically denied that plaintiff has auffered a permanent diminution of his eerninQ capaoity. If plaintiff has and/or will sustain injuries, d..aQe. and/or 10.... a. alleged, answering defendant denies any and all liability therefore. strict proof is demanded at trial. 12. Oenied. After reasonable investigation, answering defendant i. without knowledge or information sufficient to form a belief a. to the truth of the averments set forth in paragraph 12 of plaintiff.' Amended complaint, therefore, said averments .re .peoifioallY denied. By way of further response, it i. .pecificallY denied that a. a direct result of the accident de.cribad in plaintiffs' Amended complaint, plaintiff incurred .edical bill. approaching $15,000.00 in wage losses in exce.s of t6,000.00. If plaintiff has and/or will sustain injuries, da.age. and/or lo.ae. as set forth in plaintiffs' Amended co.plaint, an.wering defendant denies any and all liability therefore. strict proof is demanded at trial. 13. Denied. After reasonable investigation, an.wering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph -4- 13 of plaintiffs' Aaended Complaint, therefore, said averments are specifically denied. By way of further response, it is speoifically denied that as a direot result of his injuries, plaintiff has in the past suffered acute and disabling pain and will in the future suffer pain, anxiety and sUffering. If plaintiff has sustained injuries, damages and/or losses as alleged in plaintiffs' Amended Complaint, answering defendant denies any and all liability therefore. strict proof i. demanded at trial. 14. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 14 of plaintiffs' Amended Complaint, therefore, said averments ara specifically denied. By way of further response, it is speoifically denied that as a direct result of plaintiff- hUaband's injuries, plaintiff-wife has suffered a loss of consortium, advice, society and comfort. If plaintiff-wife has suffered injuries, damages and/or losses as alleged, answering defendant denies any and all liability therefore. strict proof i. demanded at trial. COUNt I Jobn P. At... ant lantra L. At..s v. Clark .aterial .antlinq co~any IT_ICT LIAlILITY AKD ..OLIO..C. 15. Answering defendant, Clark Material Handling company, incorporates its responses to paragraphs 1 through 14, inolusive, of plaintiffs' Amended Complaint as though set forth at length herein. -5- 16. Denied. To the extent the allegations .et forth in paragraph 16 of plaintiffs' Amended complaint constitute conclusions of law, no response is required under the psnnsylvania Rules of civil Procedure. By way of further response, it is specifically denied that answering defendant, Clark Material Handling company, is strictly liable to plaintiff under S402(A) of the Restatement of Torts (Second\ and/or liable to plaintiff under common law negligence for the damages alleged in plaintiffs' Amended Complaint which were directly and proximatelY caused by the forklift truck identified in plaintiffs' Amended Complaint. By way of further response, it is specifically denied that the forklift described in plaintiffs' Aaended Complaint in its as-marketed condition caused or contributed to the cause of the subject accident or plaintiff's injuries with regard to its design, manufacture or marketing and it is further denied that answering defendant was negligent in any manner whatsoever at any time material hereto including but not limited to the following: a. It is specifically denied that the forklift described in plaintiffs' Amended complaint malfunctioned in the absence of a reasonable secondary cause when it went into reverse without a driver present on the vehicle; b. It is specifically denied that the subject forklift described in plaintiffs' Amended complaint was defective or negligently designed in any manner whatsoever in failing to have any operator presence controls on the forklift. By way of -6- further response, the forklift is equipped with a hand operated parking brake and an ignition as well as warnings which make the forklift safe for its intended use; c. It is speoifioally denied that the subjeot forklift desoribed in plaintiffs' Amended Complaint was defective or negligently designed in any manner whatsoever with respeot to oonstruoting the forward/neutral/reverse shift lever, linkage and hydraulio control system without separate, distinct detents for forward, reverse and neutral; d. It is specifically denied that the subject forklift described in plaintiffs' Amended Complaint was defective or negligently designed in any manner whatsoever inoluding oonstructing the shift lever, shift linkage and hydraulio control system in such a manner that the operator oould place the vehicle in what appeared to be neutral position when the vehiole, in fact, was in reverse; e. It is specifically denied that the subjeot forklift described in plaintiffs' Amended Complaint was defeotive or negligently designed in any manner whatsoever inclUding designing and constructing the shift lever, shift linkage and hydraulic control system which would allow the hydraulio control system to operate in such a manner that the hydraulio oylinder oould receive hydraulic fluid in the reverse position at a slow rate, resulting in a delayed movement of the vehicle in the reverse direotion; -7- ,'-+"'-' f. It is specifically denied that the subject forklift described in plaintiffs' Amended Complaint was defsctive or negligently desiqned in any manner whatsoever including failing to provide a shift system which had distinct positions for forward, neutral and reverse; q. It is specifically denied that the subject forklift described in plaintiffs' Amended complaint was defective or negligently designed in any manner whatsoever including failing to provide a control system in which the shift lever, .hift linkaqe or hydraulic control system could be held in the neutral position; h. It is specifically denied that the subjeot forklift dsscribed in plaintiffs' Amended Complaint was defective or negligently de.igned in any manner whatsoever inCluding failinq to provide adequate warninqs to appraise the operator th.t the vehicle could, or did have a tendency to, move in a rever.e direction after a period of delay and while the operator could be off the vehicle; i. It is specifically denied that the subject forklift de.cribed in plaintiffs' Amended Complaint was defective or negligently designed in any manner whatsoever in failinq to provide accurate instructions regardinq the need to adjust the shift linkaqe, shift lever and/or the hydraulic control system to avoid delayed reverae movement of the lift truck without a rider present; -B- j. It is speoifically denied that the aubjeot forklift described in plaintiffs' Amended Complaint was defeotive or negligently designed in any manner whatsoever in failing to provide adequate operator instructions regarding the placement of the shift lever in the neutral or reverse position and the oonsequence of failing to do so accurately; k. It is specifically denied that the subjeot forklift desoribed in plaintiffs' Amended Complaint was defeotive or negligently designed in any manner whatsoever including designing the system suoh that there was or could be too much free play in the neutral reverse position; 1. It is speoifically denied that the subjeot forklift desoribed in plaintiffs' Amended Complaint was defective or negligently designed in any manner whatsoever including utilizing an emergenoy brake system which could and did regularly co.e out of adjustment or could be maladjusted by an individual operator, rather than utilizing a fixed system; m. It is specifically denied that the subject forklift described in plaintiffs' Amended Complaint was defective or negligently designed in any manner whatsoever including failing to utilize and incorporate an automatic parking brake on to the vehicle or on to the vehicle's pedals; n. Dismissed by stipulation of counsel. WHEREFORE, answering defendant requests this Honorable Court enter judgment in favor of defendant, Clark Material Handling -9- comrr II JOhD .. acl_s aD_cl _~aDclr; L~ iCi_s v. I'ol'klifts. IDO. IT.I~ ~~aBILITY .-0 ..aLIa..c. Company, and against plaintiffs, together with costs and attorney's fees. 17. Answering defendant, Clark Material Handling Company, incorporates by reference its responses to paragraphs 1 through 16, inclusive, of plaintiffs' Amended complaint as though set forth at length herein. 18. The allegations set forth in paragraph 18 pertain to a party other than answering defendant, therefore, no response is required under the pennsylvania Rules of civil procedure. 19. The allegations set forth in paragraph 19 pertain to a party other than answering defendant, therefore, no response is required under the pennsylvania Rules of civil Procedure. 20.(a-f), inclusive. The allegations set forth in paragraph 20 pertain to a party other than answering defendant, therefore, no response is required under the pennsylvania Rules of civil procedure. 21. The allegations set forth in paragraph 21 pertain to a party other than answering defendant, therefore, no response i. required under the pennsylvania Rules of civil Procedure. WHEREFORE, answering defendant requests this Honorable Court enter judgment in favor of defendant, Clark Material Handling Company, and against plaintiffs, together with costs and attorney's fees. -10- .n DftD 22. Plaintiffs' Amended complaint fails to .tate a cau.e of action upon which relief may be granted. 23. The conduct of persons, parties and/or entities other than Clark Material Handling Company was/were the proximate cau.e of plaintiff.' injuries, damage. and lo.ses a. alleged. 24. The conduct of persons, parties and/or entities other than Clark Material Handling Company may have been intervening, superseding causes of plaintiffs' injuries, damages and los.es as alleged. 25. The conduct of the plaintiff was the sole cause of injurie., damages and losses, if any. 26. The subject product may have been substantially changed in its condition after it left the posses. ion of the .anufacturer which proximatelY caused plaintiff's injurie.. 27. The .ubject product may have been mi.u.ed and/or abu.ed. 28. plaintiff assumed the risk of a known danger. 29. strict products liability is inapplicable a. a matter of law and social policy. 30. The subject product, as designed, manufactured and marketed, contained every element necessary to make it safe for it. reasonably foreseeable and intended uses. 31. As a matter of law and social pOlicy, the subject product was not unreasonably dangerous. -11- 32. The subject forklift was equipped with a parkinq brake which, if properly maintained and used by plaintiff, would have prevented plaintiff's injuries. 33. The produot identified in plaintiff's Amended complaint is not a produot of defendant, Clark Material Handling company. 34. The produot contained all necessary warnings, instruotions and direotions. 35. The product, as marketed with warnings, instruotions and direotions was safe for its intended uae inasmuch IS if said warnings are followed, the product ia safe for its intended uae. 36. Plaintiff was negligent. 37. Plaintiff was contributorily negligent. 38. Plaintiff was comparatively negligent. 39. The negligence of others was the intervening and superseding cause of plaintiff's injuries, including but not limited to negligsnt repair, maintenance and/or training relative to the subject forklift and its operation. 40. Plaintiff's right to recover, which is specificallY denied, is reduced or diminished pursulnt to the applicable comparative Negligence Act. 41. Defendant breached no duty to plaintiff. 42. Defendant was not negligent in designing, marketing or manUfacturing the forklift described in plaintiff's -12- ~ ~ended complaint, and aoted with the requi.ite .tandard of oare at all time. mat~rial h.reto. 43. The malfunction theory ia inapplioable a. a matter of law due to the pre.ence of alternative secondary oau.... 44. plaintiff's employer's neqliqenoe oaused or oontributed to the oause of plaintiff's injuries, damaqe. or lo..e., if any. 45. plaintiff's employer's violation of federal, .tate and local law oaused on oontributed to the oause of plaintiff'. injurie., damages or losses, if any. 46. The conduct of defendant did not cause plaintiff's injurie., damages or losses, if any. 47. Forklifts, Inc. is not an agont of an.wering defendant and, therefore, the pleading of aqency relationehip therefore i. impropsr as a matter of law and faot. 48. Delay damages are inapplioable and unoon.titutional. -13- . WHEREFORE, answering dsfendant requests this Honorable Court enter judqaent in favor or derendant, Clark Material Hendling coapany, and against plaintiffs, together with cost. and attorney'. r.... MARSHALL, DENNEHEY, WARNER, COLEMAN AND GOGGIN ) / /11' / J 'I / ~t/t. ., ('-.:' ' IS BELL, -2SQUIRE WALTER H. SWAYZE, III, ESQUIRE Attorneys for D.fendant, Clark Material Handling company 1845 Walnut street Philadelphia, PA 19103-4797 (215) 575-2823 3052. 127. 141916.WH8.AXI -14- 'j . VDl.lCA'flOIl I, DAVID C. FIELD, declare that I .m the hou.e counsel for Clark Material Handling company, and that I a. executing the foregoing Answer of Defendant, Clark Material Handling co.pany, to Plaintiffs' Aaended coaplaint With New Matter for and on behalf of said Defendant, and that I .m duly authorized to do so. That the matters stated in the foregoing Answer are not within my personal knowledge and I a. informed that there i. no officer of Defendant who has personal knowledge of such .atters I that the facts atated in .aid answer have been assembled by authorized eaployee. and counsel of Defendant, and 1 am informed by said counsel that the facts stated in said answer are true. I declare, under penalty of perjury, under the laws of the state of Kentucky, that the foregoing is true Exeouted this the ~ day of ~~ Lexington, Kentucky. ' ~-\ and correct. , 19116 at BY: STATf: or KENTUCJ(Y COUNTY or FAYETTE : I . . SUBSCRXIIED AND SWORN to before lie by D.~p~C. FIELD attorney fo~l~k Material Handling company, this~ day of :::::TIA. 'If' ' 1996. My coaaission Ex ires: ~ ~ ~ Pu 1 c -at-Large, Kentucky ...... . .,:..-. .j','.' .......-...;.. ,. "'.. '.;... i ;::--... ..... ., '0'- :: ..... ......J. ,....... ~..:: -- .. :r : .....__ . .. . !. ".' .. \ ,'.:--..:....,.. t...~ .... ,,' ....""... .......... "0 .. .. .... -., C"~I.Ica~IO. O. ...VIel I hereby certify that I have served upon all persons listed below a true and correot oopy of Answer to Plaintiffs' Amended co.plaint With New Matter in the within matter this date by regular mail. Terry S. Hyaan, Esquire ANGINO , ROVNER 4503 North Front street Harrisburg, PA 17110 Williaa P. Douglas, Esquire DOUGLAS, DOUGLAS , DOUGLAS 27 west High street P. O. Box 261 carlisle, PA 17013-0261 MARSHALL, DENNEHEY, WARNER COLEMAN AND GOGGIN BY:,! I I - /' '~. , . _~~~t'.'/; .Y( ',~; LOUIS' BEtt., ESQ RE WALTER H. SWAYZE, III, ESQUIRE Attorneys for Defendant, Clark Material Handling company DATED: 1 / ,) (), - I-~~- \.~ "" .. t'"' I.) ,r. .- ,. , .- l.U'.' (.~ : I O. ... J'.." r' I.' ~I ,..J I' ' 1'0. :-) ('I '\' e'> ,. , ; Ii.', -' -'.t\l ... " " ow.. , ". In j (.) U' I,,) , ~ II T.I COURT or COMMOI .Laaa or CUJI8ULUD COUll'l'Y, .....IYLVUla JOHN P. ADAMS and Hi. Wife, SANDRA L. ADAMS CIVIL ACTION - LAW No. 95-5368 civil Term v.. . . . . cLARK MATERIAL HANDLING COMPANY and FORJ(LIFTS, INc. .I.LY or DlrlMDaMT, CLARK KATIRIAL BAMDLIMQ COH.aMY, TO M" MATTia or DlrlMDaMT, roaKLlrT', IMC. Defendant, Clark Material Handling company, responds as follow. to the New Matter of Forklifts, Inc. against defendant, clark Material Handling company pur.uant to Pa. R.C.P. S 2252(d): 26. Denied. To the extent the allegation set forth in the New Matter of Forklifts, Inc. constitute conclusion. of law, no re.ponse is required under the Pennsylvania Rule. of civil procedure. By way of further response, it is specificallY denied that an.wering defendant, Clark Material Handling company, is solely liable to the plaintiff, or, in the alternative, jointly and .everally liable with defendant, Forklifts, Inc. and/or liable to defendant, Forklifts, Inc. for contribution and indemnification. ,. WHEREFORE, defendant, Clark Material Handlin9 company, de.and. jud9ment in it. favor and a9ain.t defendant, Forklift., Ino. MARSHALL, DENNEHEY, WARNER, COLEMAN AND GOGGIN BY: ESQUIRE DATE: July 26, 1996 3052.127.143S35.(21) -2- ',' eIRTI.lcaTIOM O. ...vle. I hereby certify that I have served upon all persons listed below a true and oorreot copy of the Reply of Defendant, Clark Material Handlinq company, to the New Matter of Defendant, Forklifts, Ino. in the above-oaptioned matter this date by reqular maU. Terry S. Hyman, Esquire AlfGINO , ROVNER 4503 Korth Front street Harrisburq, PA 17110 William P. Douqlas, Esquire DOUGLAS, DOUGLAS , DOUGLAS 27 We.t Hiqh street P. o. Box 261 carlisle, PA 17013-0261 WARNER -::t - BYI , III, ESQUIRE or Defendnat, erial Handlinq company DATED I Julv 26. 1996 ~ VERIFICATION Walter H. Swayze, III, Attorney for Defendant, Clark Material Handling company, verifies that the faots set forth in the Reply of Defendant, Clark Material Handling company, to the New Matter of Defendant, Forklifts, Ino. are true to the best of hi. knowledge, information and belief. If the above statement. are not true, the deponent is subjeot to the penalties of IB Pa.C.S. 54904 relating to unsworn falsification to authorities. DATE: July 26, 1996 "'~ \:. .,. ,-. i..:. u'. ;, ".:~ \I( . \I:'. .' ~! I... -:i .-~' o' r ~'. {!"\ i.! (''''; .' I' , '. ;,) F' .' .:,. J U. It" Q 0 (H . ~ ~ JOHN P. ADAMS and his wife, SANDRA L. ADAMS, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA I CIVIL ACTION - LAW I I NO. 95-5368 CIVIL TERM v. CLARK MATERIAL HANDLING COMPANY and FORXLIFTS, INC., Dsfendants JURY TRIAL DEMANDED .l.&lIl'l'Irr8' "PLY TO IfIIW Uft.. or DU.NDMI'l' CLlRI: 22-48. The allegations herein state conclusiona of law to which no response is necessary. If a response is deemed necessary, then Plaintiffs deny the averments generally as permitted under Pa.R.C.P. 1029(e)(1). ANGINO , ROVNER, P.C. '- DATED: 7/24/96 1126",.IIl ~- .. C.R~I.IeAT. O. '..VIe. AND NOW, this 25th day of July, 1996, I, Pamela J. MoClellan, an e.ployee of Angina' Rovner, P.c., do hereby oertify that I have ..rved a true and oorrect copy of the IlLAIII'1'U." DilLY '1'0 ... IIA"'.. O. D...IIDAIl'l' CLARK in the United states mail, postaqe prepaid at Harrisburq, Pennsylvania, addressed as folloWSl Walter H. sway.e, III, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN , GOGGIN 1845 Walnut street Philadelphia PA 19103-4797 Attorneya for Defendant Clark Material Handlinq company willia. P. Dougla., Eaquire DOUGLAS, DOUGLAS , DOUGLAS P.O. Box 261 27 We.t High street Carli.le PA 17013-0261 Attorneya for Defendant Forklifts, Ino. ~~~~ ,,'\) .... , ,'~^,,- PameI . McClellan .~~ ...... -.. .".f (.1', l~: i .,' \,j~ ."J 't) , \;:1 ~:'.: ", ~~': (p '),~~ ("-_! "' _ J,. \ ~ 11 u: 1t~ r < . . " \Cl , U (,-. ) . .. . JOHN p, ADAMS and SANDRA L. ADAMS, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACfION - LAW CLARK MATERIAL HANDLING COMPANY and FORKLIfTS, INC., 95-5368 CIVIL TERM Defendants IN RE: PLAINTIFFS' MOTION TO COMPEL DISCOVERY BEFORE HESS. J. ORDER AND NOW, this ~ "'!' day of August. 1996, it Is ordered and directed that: 1. All outstanding written discovery, Including that served upon defendant on August I, 1996, shall be answered by October I, 1996j 2. By January 31, 1997, the parties shall complete written and oral discovery of those witnesses Identified within the existing discovery responses or those responses produced by October I, 1996. Defendant will make a good faith effort to arrange for the depositions of CUlfent or former Clark employees, Plaintiffs will agree to conduct such depositions in Kentucky, if necessary, 3. Any IME(s) required by defendant shall be completed by January 31, 1997. 4. From February 1 to March 31, 1997, the parties shall have the right to conduct follow- up written or oral dlsCA.lYery based on Information developed from October I. 1996, through January 31. 1997. or other information which has CA.Jmc Into their possession. All OlIO-expert discovery shall be complcted hy March 31. 1997. "Complctcd" means the depositions shall he scheduled to take place nolaler than April Ill. 1997, Wrltlen dlsCA.lYery shall he filed such that responses shall he due no later than April to, 1997, '. S, By April 30, 1997, the plaintiffs shall produce the following: a, Expert reports other than treating physicians: b, Answers to Defendant's contention interrogatories stating the material facts upon which all causes will be asserted at trial arc based. Plaintiffs' shall consist of each theory. summarizing its factual basis and identifying the witnmes and documents which will be offered In support of the theories: and e. Plaintiffs shall identify and produce any videotapes, films, photographs and, If no photographic evidence exists, written narrative of any reconstruction of the aceldent or demonstrative evidence using an exemplar forklift truck done by plaintiffs or their experts. Failure to Identify a reconstruction or exemplar demonstration prior to trial will result in Its exclusion at trial. 6. By May 31, 1997. defendant shall produce the following: a. Defendant's expert report. b. Answers to plaintiffs' contention Interrogatories and/or amended answer to the . complaint stating the material facts upon which all defenses which will be asserted at trial are based. Defendant's shall consist of the theory of each defense, summarize its factual basis and Identify the witnesses and documents which will be offered in support of the theories, c. Defendants shall identify and produce any videotapes, films, photographs and if no graphic evidencc exists, a written narrative of any reconstruction of the accident or demonstrative evidence using an exemplar forklift truek done by defendants or their experts, Failure to Identify a reconstruction or exemplar demonstration prior to trllll will result In its exclusion at tria\. 7. Plllintiffs will have until June 30, 1997. to conduct any additional discovery on the affirmative defenses identified by defendllnt Ilr defendants' reconstruction or exemplar evidence and/or produce rebuttal expert testimony concerning defendant's demonstrative evidence or Its experts' opinions. '- 8. Defendant shall have thirty (30) days from receipt of plaintiffs' rebllllal reports and/or evidence to file a rebuttal report as to Issues raised by plaintiffs' rebuttal. 9. Dispositive molions shall be filed by July 1, 1997. 10. Any party may file request for admissions anytime, not less than thirty (30) days prior to trial, including after the expiration of the discovery deadline. Parties may also arrange for use- at-trial depositions any date up 10 and including the trial week, provided the witnesses have been previously identified within the discovery periods set by this order. 11. Clark. upon request, shall provide the last known address, telephone number, and social security number of any former Clark employee identified during discovery with relevant knowledge of the design or manufaeture of the parts at issue. BY THE COURT, _AIL '^~ Terry Hyman, Esquire \/'( :~ For the Plaintiffs ArtY 14\7 Walter H, Swape, III. Esquire I" For Defendant Clark Material Handling Co. If, f" William P. Douglas, Esquire For Defendant Forklifts, Inc. ':rlm \ , , IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOHN P. ADAMS and SANDRA L. ADAMS, , PLAINTIFFS CIVIL ACTION - LAW NO. 95-5368 CIVIL TERM v. CLARK MATERIAL HANDLING COMPANY and FORKLIFTS, INC., DEFENDANTS JURY TRIAL DEMANDED pRU:CIPK TO THE PROTHONOTARY: Please have the enclosed Stipulation, between the attorney for the plaintiffs and the attorney for Defendant Clark Material Handling company, approved by the Court, and filed. MARSHALL, DENNEHEY, WARNER COLEMAN 6< GOGGIN DATE:~~ BYI~ 7,~J.Jff. J#t LOUIS BELL, ESQ. { I WALTER H. SWAYZE, III, ESQ. Attorney for Defendant, Clark Material Handling Company " \. I. ft. COD'f 01' 0011II0. 'LIU 01' CllDD"~ count, ,,,,IYLVlUIIa JOHN P. ADAMS and Ht. Wife, SANDRA L. ADAMS . . CIVIL ACTION - LAW No. 95-5368 civil Tera vs. I . . CLAJU( MATERIAL HANDLING I COMPANY and FORKLIFTS, INC. a'flJlJU'l'IOI It is hereby STIPULATED and AGREED by and between counsel for plaintiffs, Terry S. Hyman, Esquire and counsel for defendant, Clark Material Handling company, Walter H. swayze, III, Esquire, that paragraph 16(n) only of Plaintiffs' Amended complaint is DISMISSED WITH PREJUDICE. It is further STIPULATED and AGREED that defendant will file its Answer with New Matter on or before July 2 1996. - ." n, Esquire plaintiffs a ter . a ze, III, Esquire Attorney for Defendant, Clark Material Handling Company .- (LL~{ ~ Datel q - ') , 7ft? r.t r", _('.f ~,~:: r: ., ' . .,.....\'( { Q i ~ ~ ."'{ rl 0;- ~~ ~ ~ . I'" ' .. J i .. u ;,' ~J: I ! l., ' ., . - Ilj h~IJ,S) LV/"~'v\ .. " I , . CIRTIrICATB or SIRVICI I, Susan M. Williams, an employee of Marshall, Dennehey, Warner, coleman & Goggin, do hereby certify that on this 17th day of July, 1996 served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Terry S. Hyman, Esquire ANGINO & ROVNER 4503 North Front Street Harrisburg, PA 17110 William P. Douglas, Esquire DOUGLAS, DOUGLAS & DOUGLAS 27 West High Street P.O. Box 261 Carlisle, PA 17013-0261 ~ fVL. u)i~ SUSAN M. WILLIAMS " , ,l ., In -,.. .... f., " " !.'j I. .. u(' .1' ... (r.t :t.. .'=-~ I" ~i p Lf. ,":..J 9', e) ~i) f" , ., ij- ,~ r' ~ ':,] J.. Ill. r-- ;:' , '.'.- \.8 j U c. . .1 JOHN P. ADAMS and his wife, SANDRA L. ADAMS, plaintiffS v, CLARK MATERIAL HANDLING COMPANY and FORJC:LIFTS, INC., Defendants IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . : NO. 95-5368 CIVIL TERM , , . . . . 11'1.&111'1'1...' apLY ora 11II. IIJ.'l'TBR O. D..BIIDUI'l' .ORItLInl 26. The allegations herein state conolusions of law to which no response is necessary. If a response is deemed neoeBsary, then plaintiffS deny the averments generally as permitted under Pa.R,C,P. 1029(8)(1). DATED: ''&- cl-C\~ 95861/PJM ANGINO , ROVNER, P.C. / // ,,_/ Esqu re e..'l'1.10.'l'. or ...Vle. \\"-~~ AND NOW, this ,;),'\('~ day of ~::l1996, I, pamela J. McClellan, an employee of Angino , Rovner, P.c., do hereby oertify that I have Berved a true and correct copy of the pI.&IHTI.r8' ..'LY ora ... "'l"l'.. or DlrlIDAMT rORItLIr'l'8 in the United states mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows, Walter H. Swayze, III, EBquire MARSHALL" DENNEHEY, WARNER, , co~ , GOGGIN , 1846" WalnU1: street : Philadelphia PA 19103-4797 ( Attorheys for Defendant Clark I,Material Handling company (: f"wilUaa p,: Douglas, Esquire DOUClLAS, DOUGLAS , DOUGLAS 1t,O~"Box 261 27 W.st High street Carlisle PA 17013-026l Attorneys for Defendant Forklifts, Ino. ~~~CS) QS,)~ ~- Pamel .P. McClellan , " ~ '.:; ~ M If:! a:: ~! ~, It (.!J Vol ::J if: .-.; .." 15 c' .:~ ' \~ 1 ~ U~ , -.. JOHN P. ADAMS and his wife, SANDRA L. ADAMS, plaintiffs v. CLARJC: MATERIAL HANDLING : COMPANY and rORJ(LIFTS, INC., : Defendants : , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-5368 CIVIL TERM CIR'l'IrICaTI or .IRVICI alGaaDIIG II'LAIII'1'Irr'. III'1'''.OGA'l'OaII. '1'0 D.r.IIDAMT CLUK 81265/PJH ~ f"'\ ~ ~ C..~1.1e.~. or ...VICI AND NOW, this /M( day of December, 1996, I, Betty 1(. Sheaffer, an employee of Angino , Rovner, P.C., do hereby certify that I have served a true and correot oopy of .LAIlI'urr'. III'I.UOU'fOaI'. oaTlo o.e..... 4, 1"', DIUC'l"D 'fO O.,.IlDUI'l' CLARK 8".laL IlAIIDLIMca COIl.PY in the united states mail, postage prepaid at Harrisburg, Pennsylvania, addreBBed as follows: Louis Ball, ESquire Walter H, swayze, III, E8quire MARSHALL, DENNEHEY, WARNER, coLEMAN . GOGGIN 1845 Walnut street Philadelphia PA 19103-4797 Attorneys for Defendant Clark Material Handling company Willia. P. Douglas, Esquire DOUGLAS, DOUGLAS , DOUGLAS P.O. BoX 261 27 We.t High street carli.le PA 17013-0261 Attorneys for Defendant Forklifts, Inc. - \.[~ i;s ~" '.' F" c. ~... \1.-\': '(, (\t \.I.lf.l J C.t, I- t.'. o , - i.!-r - ("# " :- -' -j ,'-.. ;',l.-f. , I ~". ,,', \~:~ -. ~/) ", "j. 'ir!.\ 'JiJ.. , , ~') CJ . , ,- (1\ ... ... . v , '--' , JOHN P. ADAMS .nd hi. wif., IAIIDRA L, ADAMS, plaintiff. : IN THB COURT or COMMON PLEAS or : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW , : NO. 95-5368 CIVIL TERM , : : v. CLUJ( MATERIAL HANDLING COMPANY .nd FORKLIFTS, INC., Def.nd.nt. oaDD AND NOW, this J I. day of ~t:k-ch , 1997, it i. h.r.by ORDERED th.t the d.adlin.. for discovery ..t forth in Th. court'. Ord.r of Augu.t 2, 1996, in this ol(l.e are .xtended until the c... i. .ith.r ..ttl.d or, if the part i.. are unable to r..ch . .attl...nt .gr....nt, are .xt.nd.d for thirty day. at which ti.. tha p.rti.. ar. to .ub.it r.vi.ad di.cov.ry deadlin.. to the court for .pproval. BY THE COURT: . Ad.. J. JOHN P. ADAKB and his wife, SAMORA L. ADAMS, Plaintiffs : IN THE COURT or COMMON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-5368 CIVIL TERM v. CLARlt MATERIAL HANDLING COIIPAMY and rORKLIFTS, INC" Defendants JOIIl'1' ".LICA~IO. .0. B~IH810. O. DIICOV.RY DBADLIHI. AND HOW, co.e plaintiffs through their attorneys, Terry S. Hya&n of Angino , Rovner, P.C., Defendant Clark Material Handling Co.pany through its attorney, Louis Bell of MarBhall, Dennehey, Warner, Cole.an , Goggin, and Defendant Forklifts, Inc., through its attorney, Willia. P. Douglas of Douglas, Douglas' Douglas, and aake this Joint Application for Extension of Discovery Deadlines for the following reasons: 1. On August 2, 1996, The Honorable Kevin A. Hess entersd an Order setting forth various discovery deadlines in the above case. 2. At the present tille, the parties have entered into serious settle.ent negotiations. 3. While negotiations are continuing, the parties hereby request a thirty-day extension of the Court-ordered discovery deadlines allowing the parties to try to settle the case without having to incur additional expenses and attorney time on what will hopefully be unnscessary discovery. If the parties are unable to reach a settlement a joint motion setting forth realistio dates to complete discovery will be submitted by the partiee to supersede the existing order. l09797/.JM 4. The partie. currently have deposition. .oheduled for April 15, lii7, end will aake every effort to reach a .ettle.ent prior to that date. 5, As coun.el for all partie. agree to the 30-day exten.ion of discovery deadline. no party will be prejudiced by granting this Motion, whUe the Court wUl benefit by hopefully .ettling the aatter without any further burden on the Court. WHEREFORB, plaintiffs and Defendants rsspectfully request that an Order be entered extending the discovery deadline. entered in J\&dge He.s' Augu.t 2, 1996, Order by an additional thirty (30) day.. ReBpectfully submitted, ANGINa , ROVNER, P.C. DATID: ~- ~\-~\ 2 . " .... .......t..... ' JOHN P. ADAMI and hi. wife, IUDRA L. ADAMI, plaintiffs : IN THI COURT or COIIMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : : NO. 96-5368 CIVIL TERM : v. CLAIUt IlATIRIAL HANDLING COMPANY and POR1tLIFTS, INC., Defendants . . CERTIFICATE OF COUNSEL I, Terry Hyaan, Isquire, attorney for John and Sandra Ada.s, do hereby affira, that I have obtained approval of the aforesaid Joint Motion for and Extension of Discovery fro. both Willia. P. Douflas, ..quire an~ Louis Bell, Esquire, who have authorized .e to repr.sent to the Court, their a9r...ent to the Motion. ~;~. .... ------ O"~I.ICA~. O. ...VIO. AND NOW, this 37th day of March, 1997, I, Pamela J. McClollan, an eaploye. of Angino' Rovner, P.C., do hereby certify that I have s.rved a true and correct oopy of the .10111'1' AP'LICA'l'IOI ro. """.101 O. DI.COVal DDDLI.I. in the Unit.d states maU, postage prepaid at Harrisburg, Pennsylvania, addr...ed as follows: Louis B.ll, Esquire Walt.r H. sway.e, III, E.quire IlARBHALL, DENNEHEY, WARNER, COLlMAN , GOGGIN 1145 Walnut utr.et 'hiladelphia PA 19103-4797 Attorn.ys for Defendant Clark Mat.riel Handling coapany Willia. p, DoU9las, Esquir. DOUGLAS, DOUGLAS , DOUGLAS P.O. Box 261 37 Weat High Stre.t Carli.l. PA 17013-0261 Attorneys for Defendant Forklifts, Inc, ~a".i' ~ ~_~~t..~~a~~"- pa.. a J. M . an q.' ~, - - ,Il ...... M '1 ~ J F