HomeMy WebLinkAbout02-5932DENISE COLEMAN,
Plaintiff
ROBERT M. COLEMAN,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
: No. 02-O5-q3~ CIVIL TERM
: IN DIVORCE
NOTICE TO DEFEND AND CLAIM OF RIGHTS
You have been sued in Court. If you wish to defend against the claims set forth in
the following pages, you must take prompt action. You are warned that if you fail to do so,
the case may proceed without you and a decree of divorce or annulment may be entered
against you by the Court. A judgment may also be entered against you for any other claim
or relief requested in these papers by the Plaintiff. You may lose money or property or
other rights important to you, including custody or visitation of your children.
When the ground for the divorce is indignities or irretrievable breakdown of the
paarriage, you may request marriage counseling. A list of marriage counselors is available
~n the Office of the Prothonotary at:
CUMBERLAND COUNTY COURTHOUSE
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: 240-6195
IF YOU DO NOT FiLE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY,
LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS
GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANy OF THEM.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: 717-249-3166
AMERICANS WITH DISABILITIES ACT OF 1990
The Court of Common Pleas of Cumberland County is required by law to comply
with the Americans with Disabilities Act of 1990. For information about accessible
facilities and reasonable accommodations available to disabled individuals having business
before the court, please contact our office. All arrangements must be made at least 72
hours prior to any hearing or business before the court. You must attend the scheduled
conference or hearing.
DENISE COLEMAN,
Plaintiff
ROBERT M. COLEMAN,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
: No. 02- ~'q.~.z_ CIVIL TERM
: IN DIVORCE
COMPLAINT
COUNT I - DIVORCE UNDER 3301(c) OF THE DIVORCE CODE
AND NOW comes DENISE COLEMAN by and through Frey and Tiley, attorneys for
Plaintif/; and makes the following statement:
1. Plaintiff is DENISE COLEMAN, who currently resides at 717 Market Street, No.
200, Lemoyne, Cumberland County, Pennsylvania.
2. Defendant is ROBERT M. COLEMAN, who currently resides at 416 Boxwood
Court, Mechanicsburg, Cumberland County, Pennsylvania.
3. Plaintiff and Defendant have been bona fide residents in the Commonwealth of
Pennsylvania for at least six (6) months immediately previous to the filing of this Complaint.
4. Plaintiff and Defendant were married on January 4, 1996 in Santa Anna, California.
5. Them have been no prior actions of divorce or for annulment between the parties.
6. The marriage is irretrievably broken.
7. Plaintiff has been advised that counseling is available and that Plaintiff may have the
right to request that the Court require the parties to participate in counseling.
WHEREFORE, Plaintiff requests your Honorable Court to enter a Decree in Divorce,
Divorcing Plaintiff and Defendant.
COUNT II - DIVORCE UNDER 3301(d) OF THE DIVORCE CODE
8. The allegations in Paragraphs 1 through 7 are incorporated herein by reference and are
made a part hereof.
9. Plaintiff and Defendant are now living separate and apart and, at the appropriate time,
Plaintiff will submit an affidavit alleging that the parties have lived separate and apart for at least
two (2) years and that the marriage is irretrievably broken.
WHEREFORE, Plaintiff requests your Honorable Court to enter a Decree in Divorce,
divorcing Plaintiff and Defendant.
Frey & Tiley,
Attorneys for Plaintiff
Robert G. Frey, Esquire
Supreme Court Number 46397
5 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 243-5838
I verify that the statements made in this complaint are tree and correct. I understand that
false statements herein are made subject to the penalties of 18 Pa. C. S. 4904 relating to unswom
hlsificafion to authorities.
Dated:
November 2 q, 2002
DENISE COLEMAN,
Plaintiff
Vo
ROBERT M. COLEMAN,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 02-'773~1,. CIVIL TERM
IN DIVORCE
AFFIDAVIT OF SERVICE
AND NOW, this December 19, 2002, I, Robert G. Frey,. Attorney for Denise Coleman,
Plaintiff in the above-captioned matter, hereby swear that I have served a true certified copy of the
Complaint, with Notice to Defend, in the above-captioned matter upon Robert M. Coleman, 416
Boxwood Court, Mechanicsburg, Pennsylvania 17050, by depositing same in the United States
Mail, postage prepaid, certified mail addressee only, return receipt requested. The return receipt
card indicating service was made on December 18, 2002, is marked Exhibit "A" attached hereto, and
made a part of hereof.
Attorney for Plaintiff
5 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 243-5838
Swom and subscribed to before me this
December ~002
I_ T~H~n ~ ~OT~aV UU~UC I
I .u-ou~ o~ C~.~E. ~ CO.. p^ I
EXHIBIT "A"
DENISE COLEMAN,
Plaintiff
V.
ROBERT M. COLEMAN,
Defendant
· IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 02-5932 CIVIL TERM
IN DIVORCE
AFFIDAVIT OF CONSENT,WAIVER OF NOTICE
OF INTENTION TO REQUEST ENTRY OF DIVORCE DECREE, AND
WAIVER OF MARRIAGE COUNSELING
1. A Complaint in divorce under Section 3301(c) of the Divorce Code was filed on December
13, 2002.
2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety days have
elapsed from the date of filing and service of the Complaint.
3. I consent to the entry of a final decree of divorce without notice.
4. I understand that I may lose rights concerning alimony, division of property, lawyer's fees,
or expenses if i do not claim them before a divorce is granted.
5. I understand that I will not be divorced until a divorce decree is entered by the Court and
that a copy of the decree will be sent to me immediately after it is filed with the Prothonotary.
6. I have been advised of the availability of marriage counseling and understand that I may
request that the court require that my spouse and I participate in counseling.
7. I understand that the court maintains a list of marriage counselors in the Domestic
Relations Office, which list is available to me upon request.
8. Being so advised, I do not request that the court require my spouse and I participate in
counseling prior to a divorce decree being handed down by the court.
I verify that the statements made in this affidavit are tree and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa. C. S. §4904 relating to unsworn
falsification to aUthorities.
DATE:
March '~O, 2003
ROBERT M. COLEMAN
DENISE COLEMAN,
Plaintiff
V.
ROBERT M. COLEMAN,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 02-5932 CIVIL TERM
IN DIVORCE
AFFIDAVIT OF CONSENT,WAIVER OF NOTICE
OF INTENTION TO REQUEST ENTRY OF DIVORCE DECREE, AND
WAIVER OF MARRIAGE COUNSELING
1. A Complaint in divorce under Section 3301(c) of the Divorce Code was filed on December
13, 2002.
2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety days have
elapsed from the date of fling and service of the Complaint.
3. I consent to the entry of a final decree of divorce without notice.
4. I understand that I may lose rights concerning alimony, division of property, lawyer's fees,
or expenses if i do not claim them before a divorce is granted.
5. I understand that I will not be divorced until a divorce decree is entered by the Court and
that a copy of the decree will be sent to me immediately after it is filed with the Prothonotary.
6. I have been advised of the availability of marriage counseling and understand that I may
request that the court require that my spouse and I participate in counseling.
7. I understand that the court maintains a list of marriage counselors in the Domestic
Relations Office, which list is available to me upon request.
8. Being so advised, I do not request that the court require my spouse and I participate in
counseling prior to a divorce decree being handed down by the court.
I verify that the statements made in this affidavit are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa. C. S. §4904 relating to unsworn
falsification to authorities.
DATE: March f, 2003
DENISE COLEMAN,
Plaintiff
Vo
ROBERT M. COLEMAN,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 02-5932 CIVIL TERM
IN DIVORCE
PRAECIPE TO TRANSMIT RECORD
To the Prothonotary:
Transmit the record, together with the following information, to the court for entry of
a divorce decree:
1. Ground for divorce: irretrievable breakdown under Section 3301(c) of the
Divorce Code.
2. Date and manner of service of the complaint: Certified Mail return receipt on
December 18, 2002, see Affidavit of Service filed.
3.(A) Date of the execution of the affidavit of consent required by Section 3301 (c)
of the Divorce Code: by PlainfiffMarch 20, 2003; by Defendant March 20, 2003.
4. Related claims pending: None.
5.(b) Date Plaintiffs Waiver of Notice in §3301(c) Divorce was filed with the
Prothonotary: March 25, 2003.
Date Defendant's Waiver of Notice in §3301(c) Divorce was filed with the
Prothonotary: March 25, 2003.
Robert G. Frey
5 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 243-5838
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
STATE OF ~ PENNA.
DENISE COLEMAN,
................................... Plaintiff ...............................
Versus
ROBERT M. COLEMAN,
................................ Di~fendan~
DECREE IN
DIVORCE
AND NOW ..... ~'~'l" t.~ ................ 2.0.0.3, it is ordered and
· - · DENISE COLEMAN .
decreed mot ............................................. , plaintiff,
end ..........a.°..~F.a.T. ~....C.O.I,..~..~...m ........................ defendant,
ore divorced from the bonds of matrimony.
The court retains jurisdiction of the following claims which have
been raised of record in this action for which a final order has not yet
been entered;
NONE. '
Prothonotary
1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
WILLIAM WOOMER, : C1VIL DiVISION
Plaintiff, :
: NO. 02-5982
V. ~
TRACY J. BLUMENSTEIN and :
RICHARD A. BLUMENSTEIN, father :
and son, t/d/b/a PRECISION MARINE :
SERVICE, D~ INSURANCE :
AGENCY, ENCOMPASS INSURANCE, :
Defendants. :
NOTICE TO PLEAD
TO:
William Woomer, Plaintiff
c/o Arthur S. Cohen, Esquire
Cohen & Axinn
1904 N. Juniata Street
P.O. Box 597
Hollidaysburg, PA 16648
You are hereby notified to plead to the enclosed Preliminary Objections within twenty
(20) days from service hereof or a default judgment may be filed against you.
DATE:
MARSHALL, ~'~/NEHEY, WARNER,
· ~at~[e~j~. ~n[u~uire
I.D. No. '16080
4200 Crums Mill Road, Suite B
Harrisburg, PA 17112
(717) 651-3501
Attorneys for Defendant Encompass
\05_A\LIAB\M LO\LLPG\ 127670~ACS\15000X50000
1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
WILLIAM WOOMER, : CIVIL DIVISION
Plaintiff, :
: NO. 02-5982
V. ~
TRACY J. BLUMENSTEIN and :
RICHARD A. BLUMENSTEIN, father :
and son, t/d/b/a PRECISION MAR1NE :
SERVICE, DUNN iNSURANCE :
AGENCY, ENCOMPASS INSURANCE, :
Defendants. :
PRELIMINARY OBJECTIONS OF DEFENDANT ENCOMPASS INSURANCE
TO PLAINTIFFtS COMPLAINT
AND NOW, comes Defendant Encompass Insurance, by and through its counsel,
Marshall, Dennehey, Warner, Coleman & Goggin, and files the following Preliminary
Objections to Plaintiffs Complaint:
I. Introduction
1. Plaintiff commenced this Civil Action on December 17, 2002, raising varied
causes of action against Richard A. Blumenstein, Jr., Tracy J. Blumenstein t/dPo/a Precision
Marine Service ("Precision"), Dunn Insurance Agency ("Dunn"), and Encompass Insurance
("Encompass").
2. These Preliminary Objections pr/madly assert that Encompass is not a legal entity
and cannot be sued in Pennsylvania, that service of Encompass was improper and that venue is
improper against moving Defendant in the Court of Common Pleas of Cumberland County.
Finally, these Preliminary Objections raise the Plaintiffs failure to attach certain documents to
the Complaint in violation of the Pennsylvania Rules of Civil Procedure.
II. Factual Background
3. Plaintiffpleads the following as the residence(s) of the parties:
(a) Plaintiffresides in James Creek, Pennsylvania. (Complaint, ¶ 1). This
Honorable Court can take notice that James Creek is a municipality located in Huntingdon
County, Pennsylvania.
(b) Tracy Blumenstein, one of Precision's principals, resides in James Creek,
Pennsylvania. (Complaint, ¶ 2). This Honorable Court can take notice that James Creek is a
municipality located in Huntingdon County, Pennsylvania.
(c) Richard Blumenstein, Precision's other principal, resides in James Creek,
Pennsylvania. (Complaint, ¶ 3). This Honorable Court can lake notice that James Creek is a
municipality located in Huntingdon County, Pennsylvania.
(d) Dunn maintains a place of business in Mechanicsburg, (Complaint, ¶ 4), which is
in Cumberland County, Pennsylvania.
(e) Encompass a non-legal entity, maintains offices in Reading, Pennsylvania
(Complaint ¶ 5) which is in Berks County, Pennsylvania. Mike Reif maintains an office in
York County, Pennsylvania.
4. The Complaint sets forth separate claims against Precision in Count I, against
Dunn in Count II and against Encompass in Count III.
5. In sum, Count I alleges negligence against Precision relating to the cause of a fire
at Plaintiffs and Precision's business location in Huntingdon County.
2
6. In sum, Count II alleges negligence against Dunn relating to the procurement of
an insurance policy covering the business premises in Huntingdon County.
7. In sum, Count III alleges defamation against Encompass relating to the
investigation of the cause of the fire at the business premises in Huntingdon County.
III. Preliminary Objections
A. Demurrer: Encompass is not a legal entity and service was improper.
8. Plaintiffraises a claim of defamation against Defendant Encompass Insurance
through its alleged agent, Mike Reif, in Count III of thc Complaint.
9. Mike Reif is not an agent of Encompass Insurance and no facts are pleaded to
support Plaintiff's bald conclusions raised in the Complaint.
10. In fact, Encompass Insurance is not a legal entity, and therefore, it cannot be sued
under Pennsylvania law under the Pennsylvania Rules of Civil Procedure.
11. Encompass Insurance is a trade or service name used by a number of affiliated but
separate insurance companies for personal insurance thc names of which Plaintiff or his counsel
knew or should have known.
12. Therefore, counsel for Encompass Insurance assumes that it is undisputed among
the parties that Encompass Insurance is a trade name and is not a legal entity.
13. Therefore, Plaintiffs Complaint should bc dismissed in its entirety as against
Defendant Encompass Insurance.
14. If Plaintiff's claims are cognizable, service was improper under the Pennsylvania
Rules of Civil Procedure as thc alleged agent of Encompass, Mike Reif, is not an employee of
Encompass nor was he an employee of Encompass during thc alleged defamatory remarks.
3
Moreover, he was employed by the commercial general liability insurer for Precision Marine
and maintains an office in York County, Pennsylvania.
Encompass was not and is not the insurer for Precision Marine or the Blumenstein
15.
Defendants.
16.
Therefore, service in Reading, Berks County, Pennsylvania upon Encompass was
improper and Plaintiff's Complaint should be dismissed as against moving Defendant.
B. Improper Venue
17. Improper venue shall be raised by preliminary objection in accordance with Rule
1006 and 1028(a)(2).
18. Pennsylvania Rule of Civil Procedure 1006 proscribes the judicial district(s) in
which a Civil Action may be commenced against an individual defendant as follows:
(a) Except as otherwise provided by Subdivisions (b) and (c) of this
Rule, an action against an individual may be brought in and only
in a county in which the individual may be served or in which the
cause of action arose or where a transaction or occurrence took
place out of which the cause of action arose or in any other county
authorized by law.
Pa.R.Civ. P. 1006(a) (West 2002) (emphasis added).~
19. Venue against Encompass does not exist in Cumberland County pursuant to
Subdivision (a), because:
(1) they were not and could not be served in Cumberland County;
(2)
(3)
the cause of action against did not arise in Cumberland County; and,
none of the transactions or occurrences "out of which the cause of action
arose" took place in Cumberland County.
20. The cause of action asserted against Defendants arose in Huntingdon County.
21. All transactions or occurrences "out of which the cause of action arose" took place
in Huntingdon County. (Complaint, ¶¶ 8 & 13-18).
22. Venue against Encompass does not exist in Cumberland County pursuant to
Subdivision (c), because "joint or joint and several liability" does not arise from the pleaded
claims among the Defendants.
23. Therefore, venue in Cumberland County does not exist against Encompass, and
this Honorable Court must sustain this Preliminary Objection and dismiss the Complaint against
Encompass.
24. Accordingly, this Civil Action must be dismissed on grounds of improper venue
pursuant to Rule 1006(a).
25. Defendants request that this Honorable Court, in the alternative, transfer this Civil
Action to Huntingdon County, Pennsylvania.
C. Failure to Attach Writings to Complaint
26. The Complaint references the conclusions of an investigator hired to determine
the origin and cause of the hire, but Plaintiff has not attached any such report to the Complaint.
27. The Complaint makes an allegation concerning Precision's insurance policy and
asserts that Plaintiff should have been made a "loss payee" on the policy (Complaint, ¶ 11), but
~ The 2003 Amendments to Rule 1006 concerning medical malpractice actions have no bearing on the arguments
raised herein.
5
Plaintiff has not attached: (1) any writing obligating Precision to have named Plaintiff as a "loss
payee"; (2) the "binder" and, (3) the subject insurance policy.
28. Plaintiff's failure to attach these writings to the Complaint violates Pa. R. Civ. P.
1019(h) & (i).
WHEREFORE, Defendants respectfully request that this Honorable Court sustain these
Preliminary Objections and dismiss this Civil Action or, alternatively, issue an appropriate Order
transferring this case to Huntingdon County, Pennsylvania, and grant such other relief as is just,
fair and appropriate.
BY:
Respectfully submitted,
MARSHALIi~ENNEHEY, WARNER,
Matthe~ ~we~a~, Esquire
I.D. N6. 76080
4200 Crums Mill Road, Suite B
Harrisburg, PA 17112
(717) 651-3501
Attorneys for Defendant Encompass
DATE:
6
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
WILLIAM WOOMER,
Plaintiff,
TRACY J. BLUMENSTE1N and
RICHARD A. BLUMENSTEIN, father
and son, t/d/b/a PRECISION MARINE
SERVICE, DUNN INSURANCE
AGENCY, ENCOMPASS INSURANCE,
Defendants.
CiVIL DIVISION
NO. 02-5982
CERTIFICATE OF SERVICE
I, Angela Sanger, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do
hereby certify that on this c~.~day of June, 2003, I served a copy of the foregoing document
via First Class United States mail, postage prepaid as follows:
Arthur S. Cohen, Esquire
COHEN & AXINN
1904 N. Juniata Street
P.O. Box 597
Hollidaysburg, PA 16648
Thomas R.Miller, Esquire
MILLER AND MILLER
401 South 32nd Street
Camp Hill, PA 17011
Cathie J. Fagan, Esquire
James W. Creenan, Esquire
WAYMAN, ]RVIN & MCAULEY, LLC
Suite 1624, Frick Building
437 Grant Street
Pittsburgh, PA 15219
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY/OF CUMBERLAND COUNTY:
Please list the within matter for the nexT:
] Pre-Trial Argument Court
] Argument Court
CAPTION OF CASE
(entire caption must be stated in full)
William Woomer,
(Plaintiff)
VS.
Tracy J. Blumenstein and Richard
A. Blumenstein, father and son,
t/d/b/a Precision Marine Service,
Dunn Insurance Agency, Encompass
Insurance,
(Defendant)
¥S.
No. 02-5982 Civil .X~ 2002
1. State matter to be argued (i. e., plaintiffs motion for new trial,
defendant's demurrer to complaint, etc.):
Defendant Encompass Insurance's Preliminary Objections
to Plaintiff's Complaint
2. Identify counsel who will argue case:
(a) f0rplnintiff: Arthur S. Cohen, Esquire, Cohen & Axinn
1904 N. Juniata St., PO Box 597,Hollidaysburg,
(b) for defendant: PA 16648
~thew Owen~, Escluire.
zOO Crums Mill Rd., Harrisburg,PA 17112
SEE ATTACHED FOR OTHER COUNSEL
I will notify all parties in writing within two days that this case has been
listed
for
argument.
MARSHALL, ~HEY, WARNER, COLEMAN &GOGGIN
(Attorney f~ l~,effnplu~r InSurance
?.ted:
Attachment to Praecipe for Listing Case for Argument:
Counsel for Dunn Insurance Agency
Thomas R.Miller, Esquire
MILLER AND MILLER
401 South 32nd Street
Camp Hill, PA 17011
Hollidaysburg, PA 16648
Counsel for Defendants Precision Marine
Cathie J. Fagan, Esquire
James W. Creenan, Esquire
WAYMAN, IRVIN & MCAULEY, LLC
Suite 1624, Frick Building
437 Grant Street
Pittsburgh, PA 15219