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Liability for a judgment against a manufacturer that later filed for bankruptcy protection may not be transferred to another corporation that had purchased some of the manufacturer’s product lines, a Philadelphia judge has ruled. Saying a plaintiff may not “conveniently choose the ‘deep pockets’ from which he wishes to recover,” Common Pleas Judge C. Darnell Jones II granted the corporation’s petition to open a default judgment the court had entered against it. That judgment was entered after the plaintiff had “corrected” the case caption to add the corporation’s name, Illinois Tool Works Industrial Finishing, to the original defendant’s, manufacturer Binks Sames Corp. A contract that Binks Sames negotiated with ITW when the Illinois company bought parts of Binks Sames’ assets in 1998 prevents ITW from assuming liability for products sold before the purchase, Jones found. Therefore, Jones reasoned, ITW had a meritorious defense to being named a new party in the plaintiff’s personal injury lawsuit, Cargitlada v. Binks Manufacturing Co., after a jury had issued a $150,000 verdict against Binks Sames in 2001 and after the statute of limitations for the action had run out, he explained. ITW “was never named a party in the underlying suit and could therefore not file a responsive pleading to a lawsuit they were unaware of,” Jones said. The plaintiff’s remedy is not properly obtained from ITW because of the legal contract between it and Binks Sames “regardless of which company might have been in a better position to pay at any particular time.” Local counsel for ITW, James J. Donohue of White & Williams, did not return calls seeking comment. The plaintiff, Sergio Cargitlada of Lansdale, has appealed Jones’ decision, said Cargitlada’s attorney, Richard C. Senker, a solo practitioner in Plymouth Meeting. Notably, Jones said, Cargitlada and Senker didn’t petition the court to amend the case caption until two months after the 2001 verdict and one month after Binks Sames filed for bankruptcy protection. This was two years after Senker had received Binks Sames’ original answer to the complaint, which included the “incorrect information” that Binks Sames was “now known as ITW Industrial Finishing,” Jones said. Yet Binks Sames’ attorney, Philadelphia solo practitioner Gerald J. Cohen, corrected that misstatement shortly after an amended response to the complaint, Jones explained. But the prothonotary didn’t accept the amended response because Cohen hadn’t gotten the proper approval of the court to file the amendment, Senker said. “[Cohen] sent it to me when he tried to file it, but since it was never accepted, it went into the file,” Senker said. “Since it was never a pleading, I never paid any attention to it.” According to Jones’ opinion, Cohen never sought the court’s permission to refile the amended complaint because he “believed the document which he had labeled as an ‘amendment’ to his original answer, was in fact only ‘informational,’ to put plaintiff’s counsel on notice that he had sued the improper party.” Senker didn’t dispute the fact that he received the amended response, Jones said. When ITW learned it had been added to the case caption, it petitioned the court to strike the default judgment on the basis that it hadn’t become aware of the 2001 judgment until May 2002. In November 2002, Jones granted that petition. But Cargitlada appealed to the Superior Court, which remanded the case to the trial court so that he could “reaccess ITW’s petition as one to open — as opposed to strike — judgment,” the opinion states. This is because a petition to strike a judgment may be granted only for a fatal defect or irregularity that appears on the face of the record. Opening a default judgment, the Superior Court explained in a decision published last year under the caption Cargitlada v. Binks Manufacturing Co., is a matter of judicial discretion. Accordingly, ITW refiled its petition, this time to open the default judgment, which Jones granted in March. Senker had argued to the trial court that Cohen’s statement that Binks Sames had “become” ITW was assumed to be correct and, therefore, should have been deemed an admission of fact, according to the opinion. However, Jones wrote, Cohen wasn’t representing ITW at the time, and he never has. Senker “failed to acknowledge two things: (1) he waited until years after receiving [Cohen's statement] to amend his caption in accordance therewith; and (2) he received subsequent information from attorney Cohen which negated his earlier statement upon which plaintiff relied, yet plaintiff chose to disregard these facts and seek amendment anyway, without providing this court with such pertinent information.” The underlying action arose from an accident in May 1997 when the safety device on a paint sprayer became disengaged while Cargitlada was using it. The spray gun injected paint into Cargitlada’s left middle finger, which later had to be amputated as a result, according to the opinion.

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