`
`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENWLVANIA
`
`”x— a \a
`\Q‘,\%
`
`{SIR—km &
`
`.I.II.III.I.IllI-IIIInInI|InI.
`
`I-
`
`
`
`DWAYNE E. ZENOBI and COLLEEN
`
`ZENOBI,
`
`V.
`
`Plaintiffs,
`
`COLUMBUS MCKINNON CORPORATION, et
`a1.
`
`Defendants,
`
`V.
`
`JACK’S RACKS, et al.
`
`Additional Defendants.
`
`CIVIL DIVISION
`
`GD No. 18-015451
`
`PRELIMINARY OBJECTIONS OF
`
`DEFENDANTS COLUMBUS
`
`MCKINNON CORPORATION AND
`
`YALE INDUSTRIAL PRODUCTS, INC.
`TO PRELIMINARY OBJECTIONS BY
`
`DEFENDANT JACK’S RACKS
`
`Filed on behalf of Defendants:
`
`Columbus McKinnon Corporation and Yale
`Industrial Products, Inc.
`
`Counsel of Record for this Party:
`
`John E. Tyrrell, Esquire
`PA Identification No.: 56618
`
`RICCI TYRRELL JOHNSON & GREY
`
`1515 Market Street, Suite 700
`Philadelphia, PA 19102
`(215) 320—3260
`(215) 320-3261 (fax)
`Party Represented by Out-Of-County Counsel
`Only
`
`
`
`W1IHHFI9-NWSIDE
`
`an
`
`‘l.
`.l
`
`IIIAI.l.I.lIIInII|nl-l.I.l.IDI.II.InIIIcI-II.I.lnl.I.InI
`
`
`
`
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`DWAYNE E. ZENOBI and COLLEEN
`
`ZENOBI,
`
`V.
`
`CIVIL DIVISION
`
`Plaintiffs,
`
`GD No. 18-015451
`
`COLUMBUS MCKINNON CORPORATION, et
`al.
`
`Defendants,
`
`v.
`
`JACK’S RACKS, et a1.
`
`__——____________________1
`
`Additional Defendants.
`
`AND NOW, this _ day of
`
`, 2019, in consideration of the
`
`Preliminary Objections of Defendants Columbus McKinnon Corporation and Yale Industrial
`
`Products, Inc. to the Second and Third Preliminary Objections of Defendant Jack’s Racks, it is
`
`hereby ORDERED and DECREED that said Preliminary Objections are SUSTAINED.
`
`It is further ORDERED and DECREED that the Second and Third Preliminary
`
`Objections by Defendant Jack’s Racks seeking dismissal based on the statute of limitations are
`
`hereby STRICKEN.
`
`BY THE COURT:
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`
`DWAYNE E. ZENOBI and COLLEEN
`
`ZENOBI,
`
`CIVIL DIVISION
`
`Plaintiffs,
`
`GD No. 18—01545]
`
`V.
`
`COLUMBUS MCKINN ON CORPORATION, et
`al.
`
`Defendants,
`
`V.
`
`JACK’S RACKS, et a1.
`
`___________—____——_._l
`
`Additional Defendants.
`
`CERTIFICATE OF COMPLIANCE
`
`I certify that this filing complies with the provisions of the Public Access Policy ofthe
`Unified Judicial .Sj/stem ofPennsylvania: Case Records ofthe Appellate and Trial Courts that
`require filing confidential information and documents differently than non-confidential
`information and documents.
`
`Submitted by: Counsel for D m...”
`Columbus McKinnon .m-
`Indusma] Pro
`
`
`
`
`,
`
`Signature:
`
`
`
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`DWAYNE E. ZENOBI and COLLEEN
`
`ZENOBI,
`
`V.
`
`CIVIL DIVISION
`
`Plaintiffs,
`
`GD No. 18-01 5451
`
`COLUMBUS MCKINNON CORPORATION, et
`al.
`
`Defendants,
`
`v.
`
`JACK’S RACKS, et a1.
`
`Additional Defendants.
`
`PRELIMINARY OBJECTIONS 0F DEFENDANTS COLUMBUS MCKINNON
`
`CORPORATION AND YALE INDUSTRIAL PRODUCTS, INC. T0
`PRELIMINARY OBJECTIONS BY DEFENDANT JACK’S RACKS
`
`Defendants, Columbus McKinnon Corporation (“CMC”) and Yale Industrial Products,
`
`Inc. (“Yale”), by and through their undersigned counsel, preliminarily object to the Preliminary
`
`Objections filed by Defendant Jack’s Racks (“Jack’s Racks”), averring as follows:
`
`1. Plaintiffs Dwayne E. Zenobi and Colleen Zenobi (“Plaintiffs”) commenced the instant
`
`action by way of a Complaint in Civil Action filed on or about November 26, 2018. (A
`
`true and correct copy of the Complaint is attached hereto as Exhibit 1.)
`
`Plaintiffs allege that on January 13, 2017, Plaintiff Dwayne Zenobi was injured while
`
`using a Yale Electric Hoist Midget King, Model CR 35 RMP to move an eleven-foot by
`
`eighteen-foot sign. Exhibit 1 at 111] 20-21.
`
`

`

`3. Plaintiffs contend that CMC and Yale are liable in negligence and strict product liability
`
`with respect to the subject Yale Electric Hoist Midget King, Model CR 35 RMP. Exhibit
`
`1 at 1111 27-38.
`
`4. Plaintiffs further contend that Defendant Jack’s Racks is liable in negligence and strict
`
`liability for the sale, distribution and/or supply of the subject Yale Electric Hoist Midget
`
`King. Exhibit 1 at1l1l39-51.
`
`5. On March 6, 2019, Defendants CMC and Yale filed a Joinder Complaint against
`
`Defendant Jack’s Racks and John Wampler d/b/a Jack’s Racks (collectively “Additional
`
`Defendants”). (A true and correct copy of the Joinder Complaint is attached hereto as
`
`Exhibit 2.)
`
`6.
`
`In the Joinder Complaint, Defendants CMC and Yale aver that Additional Defendants are
`
`solely liable to Plaintiffs, jointly and severally liable to Plaintiffs and/or liable over to
`
`CMC and Yale for Additional Defendants’ negligent conduct. Exhibit 2 at1] 17.
`
`7. Additional Defendants answered the Joinder Complaint, denying the allegations therein, ,
`
`without obj ection‘. (A true and correct copy of Additional Defendant’s Answer to the
`
`Jcinder Complaint is attached hereto as Exhibit 3.)
`
`8. On May 17, 2019, Defendant Jack’s Racks filed Preliminary Objections to Plaintiffs’
`
`Complaint bringing (1) “a motion to strike improper service,” (2) “a motion to dismiss
`
`for failure to conform to law or rule of court,” and (3) “a motion to dismiss for legal
`
`insufficiency; demurrer.”2 (A true and correct copy of the Preliminary Objections of
`
`Jack’s Racks is attached hereto as Exhibit 4).
`
`‘ The Answer to the Joinder Complaint also denied the allegations of Plaintiff‘s Complaint incorporated therein.
`See Exhibit 3 at para. 5.
`2 These are not “motions” but rather preliminary objections.
`
`

`

`9.
`
`Both Plaintiffs’ Second and Third Preliminary Objections center on the statute of
`
`limitations under 42 Pa. C.S.A. § 5524(2), which Jack’s Racks cites as a bar to Plaintiffs’
`
`claims.
`
`10.
`
`In its second preliminary objection to dismiss for failure to conform to law or rule of
`
`court pursuant to Pa.R.C.P. No. 1028(a)(2), Jack’s Racks claims Plaintiffs’ claims are
`
`barred due to a failure to reinstate the complaint within the two-year statute of
`
`limitations. Exhibit 4 at 1] 20.
`
`11.
`
`In its third preliminary objection to dismiss for legal insufficiency via demurrer pursuant
`
`to Pa.R.C.P. 1028(a)(4), Jack’s Racks brings the same argument that Plaintiffs’ claims
`
`are barred by the statute of limitations as a matter of law. Exhibit 4 at fil 27.
`
`12.
`
`Despite filing Preliminary Objections, Jack’s Racks replied to Defendants CMC and
`
`Yale’s Cross Claims, denying same, again without objection. (A true and correct copy of
`
`Jack’s Racks Reply to Defendants CMC and Yale’s Cross Claims is attached as Exhibit
`
`5).
`
`PRELIMINARY OBJECTION TO STRIKE SECOND AND THIRD PRELIMINARY
`
`OBJECTIONS BY DEFENDANT JACK’S RACKS
`
`13.
`
`Under Pennsylvania law, a party may file preliminary objections for a failure of a
`
`pleading to conform to law or rule of court. Pa.R.C.P. 1028(a)(2).
`
`14.
`
`When a party, such as Jack’s Racks here, challenges a claim based on statute of
`
`limitations, that challenge must be made by way of new matter — not preliminary
`
`objections.
`
`15.
`
`Pa.R.C.P. 1030 mandates the affirmative defense of statute of limitations must be pled in
`
`a responsive pleading under the heading of “New Matter.” Pa.R.C.P. 1030.
`
`

`

`
`
`16. Pennsylvania courts have held the proper method to raise the statute of limitations
`
`defense is under new matter and parties who fail to do so may be challenged by
`
`preliminary objections. Mg, Devine v. Hutt,863 A.2d 1160 (Pa. Super. Ct. 2004).
`
`17. Due to Defendant Jack’s Racks failure to conform to Pa.R.C.P. 1030, its preliminary
`
`objections should be stricken.
`
`18. Additionally, the statute of limitations was tolled as to Defendant Jack’s Racks when
`
`Plaintiff commenced the litigation naming it as a defendant, and Jack’s Racks was joined
`
`as an Additional Defendant by way ofj oinder complaint filed by Defendants.
`
`19. The Court cannot therefore dismiss Defendant Jack’s Racks without injury to Moving
`
`Defendants’ right to prove Jack’s Racks is solely liable for any injuries suffered by
`
`Plaintiffs.
`
`20. Jack’s Racks also not only responded to the Joinder Complaint without objection, but
`
`further, filed a Reply to the Defendants’- Cross Claims contained in their Answer to the
`
`original Complaint without objection, which claims all validly assert Jack’s Rack’s sole
`
`liability.
`
`WHEREFORE, Defendants CMC and Yale respectfully request that the Court sustain the
`
`instant objections and strike the Second and Third Preliminary Objections filed by Defendant
`
`Jack’s Racks for failure to conform to law or rule of court.
`
`
`Respectfully
`
`
`
`
`
`
`in E. Tyrr’éll, Esq’uire
`J
`
`PA lde . tiftcation’No; 56618
`Pa '
`J. McStravick, Esquire
`
`' A ldentif {tion No.: 81314
`
`Attome
`for Defendants Columbus McKinnon
`
`Corporation and Yale Industrial Products, Inc.
`Ricci Tyrrell Johnson & Grey
`
`

`

`.huullm
`
`

`

`RICCI TYRRELL JOHNSON & GREY
`
`By: John E. Tyrrell/Patrick J. McStravick
`Identification No.: 56618/81314
`
`1515 MARKET STREET SUITE 700
`PHILADELPHIA, PA 19102
`(215) 320-3260
`jtyrrell@rtjglaw.com
`____.____—____——————————————-—————-—-1.
`DWAYNE E. ZENOBI and COLLEEN
`
`Counselfor Defendants
`Columbus McKinnon Corporation
`and Yale Industrial Products, Inc.
`
`ZENOBI,
`
`v.
`
`Plaintiffs,
`
`ALLEGHENY COUNTY COURT OF
`COMMON PLEAS
`
`COLUMBUS MCKINNON CORPORATION, et
`a1.
`
`v.
`
`Defendants,
`
`JACK’S RACKS, et a1.
`Additional Defendants.
`
`CIVIL DIVISION
`
`GD No. 18-015451
`
`CERTIFICATE OF SERVICE
`
`I, John E. Tyrrell, Esquire do hereby certify that a true and correct copy of the foregoing
`
`Preliminary Objections and Brief in Support of Preliminary Objections of Defendants Columbus
`
`McKinnon Corporation and Yale Industrial Products, Inc. to Preliminary Objections filed by
`
`Defendant Jack’s Racks was served as follows:
`
`a.
`
`b.
`
`Electronically by the Court in accordance with Pa.R.C.P. 205.4(g) on Plaintiffs;
`
`Electronically by email upon all parties; and
`
`In accordance with Pa.R.C.P. 440 via United States First Class Mail upon all
`c.
`parties not served electronically.
`
`RICCI TYRRELL JOHN ON & GREY
`
`
`
`
`"ohn E. yrrell
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`DWAYNE E. ZENOBI and COLLEEN
`
`ZENOBI,
`
`V.
`
`CIVIL DIVISION
`
`Plaintiffs,
`
`GD No. 18-01 5451
`
`BRIEF IN SUPPORT OF PRELIMINARY
`
`OBJECTIONS OF DEFENDANTS
`
`COLUMBUS MCKINNON CORPORATION, et
`a1.
`
`COLUMBUS MCKINNON
`
`CORPORATION AND YALE
`
`Defendants,
`
`INDUSTRIAL PRODUCTS, INC. TO
`PRELIMINARY OBJECTIONS BY
`
`DEFENDANT JACK’S RACKS
`
`v.
`
`JACK’S RACKS, et a1.
`
`Additional Defendants.
`
`Filed on behalf of Defendants:
`
`Columbus McKinnon Corporation and Yale
`Industrial Products, Inc.
`
`Counsel of Record for this Party:
`
`John E. Tyrrell, Esquire
`PA Identification No.: 56618
`
`RICCI TYRRELL JOHNSON & GREY
`
`1515 Market Street, Suite 700
`Philadelphia, PA 19102
`(215) 320-3260
`(215) 320-3261 (fax)
`Party Represented by Out—Of-County Counsel
`Only
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`CIVIL DIVISION
`
`_______———_—-——————.
`DWAYNE E. ZENOBI and COLLEEN
`
`GD No. 18-01545]
`
`IIIIIIIIIIIIIIIIIIIIIIII iIIIIIIIIIIIIIIIIIIIII
`
`ZENOBI,
`
`V.
`
`Plaintiffs,
`
`COLUMBUS MCKINNON CORPORATION,
`individually and d/b/a YALE, YALE
`INDUSTRIAL PRODUCTS, INC., individually
`and d/b/a YALE, and JACK’S RACKS,
`
`Defendants,
`
`v.
`
`JACK’S RACKS
`
`1301 Middletown Road,
`Greensburg, PA 15601, and
`
`JOHN WAMPLER d/b/a JACK’S RACKS
`
`1301 Middletown Road,
`Greensburg, PA 15601
`
`Additional Defendants.
`
`BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF DEFENDANTS
`
`COLUMBUS MCKINNON CORPORATION AND YALE INDUSTRIAL PRODUCTS,
`INC. TO PRELIMINARY OBJECTIONS BY DEFENDANT JACK’S RACKS
`
`Plaintiffs Dwayne E. Zenobi and Colleen Zenobi (“Plaintiffs”) commenced the instant
`
`action by way of a Complaint in Civil Action filed on or about November 26, 2018. (A true and
`
`correct copy of the Complaint is attached hereto as Exhibit 1.)
`
`Plaintiffs allege that on January 13, 2017, Plaintiff Dwayne Zenobi was injured while
`
`using a Yale Electric Hoist Midget King, Model CR 35 RMP to move an eleven-foot by
`
`eighteen-foot sign. Exhibit 1 at 111] 20-21. Plaintiffs contend that CMC and Yale are liable in
`
`

`

`negligence and strict product liability with respect to the subject Yale Electric Hoist Midget
`
`King, Model CR 35 RMP. Exhibit 1 at 111] 27-3 8. Plaintiffs further contend that Defendant Jack’s
`
`Racks is liable in negligence and strict liability for the sale, distribution and/or supply of the
`
`subject Yale Electric Hoist Midget King. Exhibit 1 at 1111 39-51.
`
`On March 6, 2019, Defendants CMC and Yale filed a Joinder Complaint against
`
`Defendant Jack’s Racks and John Wampler d/b/a Jack’s Racks (collectively “Additional
`
`Defendants”). (A true and correct copy of the Jcinder Complaint is attached hereto as Exhibit 2.)
`
`In the Joinder Complaint, Defendants CMC and Yale aver that Additional Defendants are solely
`
`liable to Plaintiffs, jointly and severally liable to Plaintiffs and/or liable over to CMC and Yale
`
`for Additional Defendants’ negligent conduct. Exhibit 2 at 1] 17. Additional Defendants
`
`answered the Joinder Complaint, denying the allegations therein, without objection]. (A true and
`
`correct copy of Additional Defendant’s Answer to the Joinder Complaint is attached hereto as
`
`Exhibit 3.)
`
`On May 17, 2019, Defendant Jack’s Racks filed Preliminary Objections to Plaintiffs’
`
`Complaint bringing (1) “a motion to strike improper service,” (2) “a motion to dismiss for failure
`
`to conform to law or rule of court,” and (3) “a motion to dismiss for legal insufficiency;
`
`demurrer.”2 (A true and correct copy of the Preliminary Objections of Jack’s Racks is attached
`
`hereto as Exhibit 4). Both Plaintiffs’ Second and Third Preliminary Objections center on the
`
`statute of limitations under 42 Pa. C.S.A. § 5524(2), which Jack’s Racks cites as a bar to
`
`Plaintiffs’ claims. In its second preliminary objection to dismiss for failure to conform to law or
`
`rule of court pursuant to Pa.R.C.P. No. 1028(a)(2), Jack’s Racks claims Plaintiffs’ claims are
`
`' The Answer to the Joinder Complaint also denied the allegations of Plaintiff’s Complaint incorporated therein.
`See Exhibit 3 at para. 5.
`2 These are not “motions” but rather preliminary objections.
`
`3
`
`

`

`barred due to a failure to reinstate the complaint within the two-year statute of limitations.
`
`Exhibit 4 at 1] 20. In its third preliminary objection to dismiss for legal insufficiency via
`
`demurrer pursuant to Pa.R.C.P. 1028(a)(4), Jack’s Racks brings the same argument that
`
`Plaintiffs’ claims are barred by the statute of limitations as a matter of law. Exhibit 4 at 1] 27.
`
`Despite filing Preliminary Objections, Jack’s Racks replied to Defendants CMC and
`
`Yale’s Cross Claims, denying same, again without objection. (A true and correct copy of Jack’s
`
`Racks Reply to Defendants CMC and Yale’s Cross Claims is attached as Exhibit 5).
`
`I.
`
`FIRST PRELIMINARY OBJECTION: MOTION TO STRIKE
`
`PRELIMINARY OBJECTIONS PURSUANT TO Pa.R.C.P. 1028(a)(2).
`
`Under Pennsylvania law, a party may file preliminary objections for a failure of a pleading to
`
`conform to law or rule of court. Pa.R.C.P. 1028(a)(2).
`
`A. The Preliminary Objections Asserting A Statute Of Limitations Defense Are
`Improper As That Defense Must Be Raised By New Matter Pursuant To
`Pennsylvania Rules Of Civil Procedure.
`
`When a party pleads the statute of limitations as a defense, that pleading must be in the form
`
`of new matter not preliminary objections. Pennsylvania Rule of Civil Procedure 1030 provides
`
`that
`
`(a) Except as provided by subdivision (b) [regarding assumption of the risk,
`comparative negligence and contributory negligence], all affirmative defenses
`including 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 heading "New
`Matter".
`
`Pa.R.C.P. 1030 (emphasis added). Pennsylvania courts have held that unless the statute of
`
`limitations is nonwaivable, then the affirrnative defense cannot be raised in preliminary
`
`objections; neither can parties argue the statute of limitations defense renders claims against it
`
`

`

`
`
`legally insufficient, by way of a demurrer. Devine v. Hurt, 863 A.2d 1160, 1167 (Pa. Super. Ct.
`
`2004)
`
`When parties fail to conform to the pleading requirements detailed in the Pennsylvania Rules
`
`of Civil Procedure, the proper challenge is preliminary objections to strike the improper
`
`
`preliminary objections for failure to conform to law or rule of court. Id; see also Farinacci v.
`
`Beaver Cnty. Indus. Dev. Auth, 511 A.2d 757, 759 (Pa. 1986) (“The proper method for
`
`challenging the propriety of defendants' preliminary objections raising the statute of limitations
`
`is by preliminary objections to defendants' preliminary obj ections”).
`
`In the matter before the Court, the Second and Third Preliminary Objections by Defendant
`
`Jack’s Racks should be stricken for failure to conform to Pa.R.C.P. 1030, which requires this
`
`statute of limitations defense to be plead as new matter. & Devine, 863 A.2d at 1167. In its
`
`second preliminary objection, Jack’s Racks argues that Plaintiffs’ claims are barred by a two-
`
`year statute of limitations as a matter of law. Exhibit 1 at 1] 20. Similarly, in its third preliminary
`
`objection — a demurrer - Jack’s Racks argues that Plaintiff’s recovery is barred by the two-year
`
`statute of limitations. Exhibit 1 at 1] 27. As the applicable statute of limitations is waivable,
`
`Defendant Jack’s Racks should have raised the statute of limitations defense by way of new
`
`matter. See Pa.R.C.P. 1030. Instead, Defendant Jack’s Racks circumvents the proper pleading
`
`requirements by filing preliminary objections raising the defense. For its failure to conform its
`
`preliminary objections to law or rule of court, the Defendant’s preliminary objections should be
`
`stricken.
`
`

`

`B. The Statute Of Limitations Was Tolled Following Plaintiff’s Filing Of Suit Against
`Defendant Jack’s Racks Making Moving Defendants’ Joiner Effective To Allege
`Jack’s Racks Is Solely Liable To Plaintiff. Dismissal Is Therefore Not Permitted.
`
`Additionally, even if the statute of limitations defense was properly raised, the preliminary
`
`objections would still fail as the statute of limitations was tolled when Plaintiffs filed the
`
`Complaint. & Hileman v. Morelli, 605 A.2d 377 (Pa. Super. Ct. 1992). Once the statute is
`
`tolled, defendants may exercise their joinder rights to assert that another defendant is liable — a
`
`claim that is not time barred as the statute is tolled. Id. at 385. In Hileman, the plaintiffs filed suit
`
`against a defendant hospital and defendant estate for wrongful death and survival actions. Id. at
`
`378. After preliminary objections by both defendants, the plaintiffs filed an. amended complaint
`
`eliminating the hospital as a defendant and the court granted plaintiffs’ oral motion to
`
`discontinue the action against the defendant hospital. Id. The Hileman court held the trial court
`
`erred in permitting the discontinuance when it failed to preserve the full cadre ofjoinder rights
`
`provided to the defendants, as the statute of limitations was tolled when plaintiff timely asserted
`
`its cause of action. Id. at 381.
`
`By preserving the defendant’s joinder rights, the Hileman court preserved the defendant
`
`estate’s right to establish that another original defendant was solely liable to the plaintiffs. Id. at
`
`386. By doing so, the court did not expose any defendants to increased liability as the plaintiff
`
`already alleged both defendants were liable. Id. at 383; gm Oxford Dress Manufacturing
`
`Co., Inc. v. Shamokin Shoe Corp, 6 D. & C.3d 93, 95 (1978) (“In the case at bar, [the defendant
`
`to be joined] is already exposed to potential sole liability to plaintiff by virtue of its having been
`
`named as an original defendant. By being joined as an additional defendant, [it] is not being
`
`exposed to any increased liability. The shield of Statute of Limitations would then serve no
`
`purpose”).
`
`

`

`.!.I\
`
`n
`
`
`
`
`
`
`

`

`Similarly, here the shield of the statute of limitations would serve no purpose as Defendant
`
`Jack’s Racks was already alleged to be solely liable to Plaintiffs and would not face increased
`
`liability. See generally Exhibit 4. There is no dispute that Moving Defendant properly joined and
`
`served Jack’s Racks, incorporating Plaintiffs’ averments against them and having the effect of
`
`the Plaintiffs’ Complaint having been served up on them. See Pa.R.C.P. 2255(d). Moving
`
`Defendants’ right to establish whether Defendant Jack’s Racks is solely liable to Plaintiffs is
`
`therefore preserved, which requires Defendant Jack’s Racks to remain in the suit.
`
`When Plaintiffs commenced this lawsuit on November 26, 2018, the applicable statute of
`
`limitations, 42 Pa.C.S.A. § 5524(2), was tolled. See Hileman, 605 A.2d at 385. While the statute
`
`was tolled, Moving Defendants exercised its joinder rights and joined original defendant Jack’s
`
`Racks as well as Additional Defendant John Warnpler d/b/a Jack’s Racks by way of Joinder
`
`Complaint on March 6, 2019. In the interest of providing for the full, just and speedy
`
`adjudication of all rights and liabilities of the concerned parties in a single suit, Plaintiffs’
`
`Complaint as to Defendant Jack’s Racks should remain and Moving Defendants granted the
`
`opportunity to present their case and show sole liability, on the part of Defendant Jack’s Racks.
`
`There can be no valid argument as the validity of the Plaintiff’s claims being timely asserted
`
`without objection against Jack’s Racks. Jack’s Racks not only responded to the Joinder
`
`Complaint, incorporating Plaintiffs’ claims against it solely, without objection, but further, filed
`
`a Reply to the Defendants’ Cross Claims contained in their Answer to the original Complaint,
`
`again incorporating the Plaintiff’ s allegations including sole liability, and again without
`
`objection. These claims, all validly assert Jack’s Rack’s sole liability, and are all not precluded
`
`by the statute of limitations, making the instant request for dismissal improper.
`
`

`

`
`
`WHEREFORE, Defendants CMC and Yale respectfully request that the Court strike
`
`acks for failure to conform
`‘ s
`preliminary objections two (2) and three (3) filed by Defendant]
`
`
`to law or rule of court.
`
`
`Respect-fully submitte ,
`/
`
`John/E. Ty rell, Esquire
`PA/Iden (”cation No.: 56618
`Patrick] McStravick, Esquire
`PA a’entification No.. 81314
`tomeys for Defendants Columbus McKinnon
`Corporation and Yale Industrial Products, Inc
`Ricei Tyrrell Johnson & Grey
`1515 Market Street
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`x
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`Suite 700
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`Philadelphia, PA 19102
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`EXHIBIT 1
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`SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C.
`BY: ROBERT J. MONGELUZZI/DAVH) L. KWASS/
`BENJAMIN J. BAER
`
`IDENTIFICATION NO.: 36283/65856/205779
`
`Attorneys for Plaintiffs
`
`ALLEGHENY COUNTY
`
`COURT OF COMMON PLEAS
`
`LAW DIVISION
`
`TERM, 2018
`
`52ND FLOOR
`
`1650 MARKET STREET
`
`PHILADELPHIA, PA 19103
`(215) 496-8282
`
`DWAYNE E. ZENOBI
`
`34 Carroll Way
`Monongahela, Pennsylvania 15063
`
`and
`
`COLLEEN ZENOBI
`
`34 Carroll Way
`Monongahela, Pennsylvania 15063
`
`Plaintiffs,
`
`v.
`
`COLUMBUS MCKINNON CORPORATION,
`individually & d/b/a YALE
`205 Crosspoint Parkway
`Getzville, New York 14068
`
`and
`
`YALE INDUSTRIAL PRODUCTS INC,
`individually & d/b/a YALE
`c/o Corporation Service Company
`251 Little Falls Drive,
`Wilmington, Delaware 19808
`
`and
`
`JACK’S RACKS
`
`1301 Middletown Road,
`Greensburg, PA 15601
`
`Defendants.
`
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`

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`
`
`
`
`NOTICE
`
`AVISO
`
`"You have been sued In court. If you wish to defend against the claims setiorth In the
`following pages, you must take action within twenty (20] days after this complaint and
`notice are sewed, by entering a written appearance personally or by an attorney and
`filing in writing with the court your defenses or objections to the claims set forth against
`you. You are warned that Ifyou fail to do so the case may proceed without you and a
`Iudgment 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.
`
`"Le han demandado en corte Si usted quiere defenderse contra las demandas nombmdas en las
`paginas siguientes, tiene veinte (20) dias, a partir de reclblr esla
`demanda y la notification para
`entablar perSonsalmente 0 por un abogado una compareeencia escrlia y tamblen para entablaroon
`la corte en iorma escrlia sus defensas y obleciones a las demandas contra usted. Sea avisado que si
`usted no se defiende, eI use puede eondnuar sin usted y la oorte puede incorporar unjuicio contra
`usted sin previo aviso para consegulrel dinero demandado en el pleito 0 para consegulr culquler otra
`demanda o alivio solicitados por el demandante Usted puede perder dinero o propiedad u otros
`derechos lmportantes para usted.
`
`"YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT
`IF YOU DO NOT HAVE A LAWYER 0R CANNOT AFFORD ONE, GO TO OR TELEPHONE
`ONCE.
`THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
`WW
`
`USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO
`TIENE ABOGADO (0 N0 TIENE DINERO SU FICIENTE PARA PARGARA UN ABOGADO), VAYA EN
`PERSONSA O LLAME FOR TELEFONO LAOFICINA NOMBRAOA AEAJO PARA AVERIGUAR DONDE
`sa PUEDE cousecunt Assrsreucm LEGALW
`W
`
`(412) 261-6161
`
`ALLEGHENY COUNTY EAR ASSOCIATION
`
`LAWYER REFERRAL SERVICE
`
`400 Koppers Building, 436 Seventh Avenue
`
`Pittsburgh, Pennsylvania 15219
`
`(412) 261-6161”
`
`ALLEGHENY COUNTY BAR ASSOCIATION
`
`LAWYER REFERRAL SERVICE
`
`400 Koppers Building, 436 Seventh Avenue
`
`Pittsburgh, Pennsylvania 15219
`
`COMPLAINT — CIVIL ACTION
`
`1.
`
`Plaintiff, Dwayne Zenobi, is an adult individual and resident of the
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`Commonwealth of Pennsylvania, residing at 34 Carroll Way, Monongahela Pennsylvania 15063.
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`2.
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`Plaintiff, Colleen Zenobi, is an adult individual and resident of the
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`Commonwealth of Pennsylvania, residing 34 Carroll Way, Monongahela Pennsylvania 15063.
`
`3.
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`Plaintiffs Dwayne Zenobi and Colleen Zenobi are, and were at all relevant times
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`married as husband and wife.
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`

`

`
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`4.
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`Defendant Columbus McKinnon Corporation is a corporation or other business
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`entity with a place of business located at 205 Crosspoint Parkway, Getzville, New York 14068.
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`5.
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`At all relevant times, Defendant Columbus McKinnon Corporation has carried
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`out, and continues to carry out regular, substantial, continuous and systematic business activities
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`in the Commonwealth of Pennsylvania, and specifically within Allegheny County.
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`6.
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`At all relevant times, Defendant Columbus McKinnon Corporation was acting by
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`and through its employees, servants, and agents, acting within the course and scope of their
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`employment, service and agency.
`
`7.
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`Defendant Yale Industrial Products, Inc. is a corporation or other business entity
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`with an address for service located at 251 Little Falls Drive, Wilmington, Delaware 19808.
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`8.
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`At all relevant times, Defendant Yale Industrial Products, Inc. has carried out,
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`and continues to carry out regular, substantial, continuous and systematic business activities in
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`the Commonwealth of Pennsylvania, and specifically within Allegheny County.
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`9.
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`At all relevant times, Defendant Yale Industrial Products, Inc. was acting by and
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`through its employees, servants, and agents, acting within the course and scope of their
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`employment, service and agency.
`
`10.
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`' At all times described herein, the defendants Columbus McKinnon Corporation
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`and Yale Industrial Products, Inc. shall be collectively referred to as the “Yale Defendants”.
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`11.
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`At all relevant times, the Yale Defendants were in the business of designing,
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`the subject Yale hoist.
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`12.
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`In certified, SEC filings, Defendant Columbus McKinnon Corporation admits that
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`they sell a variety of hoists under different recognized brand names, including “Yale.”
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`13.
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`In certified, SEC filings, Defendant Columbus McKinnon Corporation admits that
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`in 2017, hoist sales made up over 50% of their overall sales.
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`assembling, manufacturing, distributing, selling and/or supplying Yale branded hoists, including
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`Yale hoists, including but not limited to a Yale Electric Hoist Midget King, Model CR 35 RMP.
`
`14.
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`Defendant, Jack’s Racks is corporation or other business entity with a place of
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`business located at 1301 Middletown Road, Greensburg, Pennsylvania 15601.
`
`15.
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`At all relevant times, Defendant Jack’s Racks has carried out, and continues to
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`carry out regular, substantial, continuous and systematic business activities in the
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`Commonwealth of Pennsylvania, and specifically within Allegheny County.
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`16.
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`At all relevant times, Defendant Jack’s Racks was acting by and through its
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`employees, servants, and agents, acting within the course and scope of their employment, service
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`and agency.
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`17.
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`At all relevant times, Defendant Jack’s Racks was in the business of advertising,
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`assembling, distributing, selling and/or supplying Yale branded hoists.
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`18.
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`At all relevant times, Defendant Jack’s Racks sold, distributed, and/or supplied
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`

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`19.
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`The Defendants identified in this Complaint are jointly and severally liable for the
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`injuries and damages alleged herein.
`
`20.
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`Sometime prior to January 13, 2017, Jack Racks sold, distributed, and/or supplied
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`a Yale Electric Hoist Midget King, Model CR 35 RMP (herein after “subject Yale hoist”) to
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`Signstat. On or about January 13, 2017, Plaintiff Dwayne Zenobi was operating the subject Yale
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`hoist, and attempting to move an eleven by eighteen foot sign using the hoist.
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`21.
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`On January 13, 2017, a sign that was approximately eleven feet by eighteen feet
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`and weighing over five hundred pounds was suspended by the subject Yale hoist.
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`22.
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`Suddenly and without warning, the subject Yale Hoist failed.
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`23.
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`The sign fell onto plaintiff Dwayne Zenobi, causing severe and permanent injury,
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`including but not limited to a spinal cord injury, rendering Mr. Zenobi quadriplegic with
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`permanent paralysis in all of his extremities.
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`24.
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`By the reason of the carelessness, negligence, and other conduct of the
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`defendants, plaintiffs have incurred, Plaintiff Dwayne Zenobi has sustained and makes claims for
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`pain and suffering, loss of physical function, permanent physical, mental and psychological
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`injuries, humiliation and embarrassment, loss of life’s pleasure, permanent scarring and any and
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`all other damages to which he is entitled or may be entitled under the laws of the Commonwealth
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`of Pennsylvania.
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`25.
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`Plaintiff Dwayne Zenobi suffered a spinal cord injury, rendering him
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`quadriplegic. Plaintiff will be wheelchair-bound for the rest of his life. He will never walk
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`again. He will never use his hands again.
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`

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`26.
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`The injuries to Plaintiffs were caused by the joint and several negligence of the
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`Yale Defendants and Defendant Jack’s Racks in failing to properly warn consumers and the end
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`users of the Yale hoist, in failing to discover the design defect associated with the Yale hoist,
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`failing to comply with and take appropriate steps to recall and stop the sale of this Yale hoist,
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`and/or for selling an inherently dangerous product.
`
`COUNT I—NEGLIGENCE
`
`PLAINTIFFS DWAYNE ZENOBI AND COLLEEN ZENOBI v. THE YALE
`DEFENDANTS
`
`27.
`
`The injuries sustained by Plaintiff Dwayne Zenobi were proximately caused by
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`the negligence of the Yale Defendants generally, and in the following respects:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`h.
`
`i.
`
`Failing to adequately inform and warn purchasers and ultimate users of the
`Yale hoist of the potential dangers of the Yale hoist;
`
`Selling, supplying, manufacturing and distributing the Yale hoist in a
`defective condition;
`
`Selling, supplying, manufacturing and distributing the Yale hoist when it
`was unreasonably dangerous to the user;
`
`Selling, supplying, manufacturing and distributing the Yale hoist when it
`was not reasonably fit, suitable or safe for its intended and represented
`purpose;
`
`Selling, supplying, manufacturing and distributing the Yale hoist when it
`lacked all of the necessary safety features to protect users of the said Yale
`hoist;
`
`Selling, supplying, manufacturing and distributing a Yale hoist which
`could be designed more safely;
`
`Failing to recall the Yale hoist;
`
`Failing to ensure that purchasers of the Yale hoist were warned of risks of
`the product they purchased;
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`Failing to prevent users from improperly using the Yale hoist;
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`

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`Failing to provide proper and/or adequate warnings;
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`Violating Restatement (Second) of Torts § 388;
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`Selling, supplying, manufacturing, and/or distributing that inadvertently
`lowered the load;
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`Selling, supplying, manufacturing, and/or distributing a hoist that where a