HomeMy WebLinkAbout98-02412
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4. From September 1976 through June 1996, Plaintiff Charles M. Billys Was employed
as llI1independent contractor and sub.agcnt with the Pat Andersonlnsnrancc Agency engaged in the
sale and solicitation of long term care insurance policies in the Commonwealth, pursuant to an oral
contract with the Agency, which included Mr. BiUys right to renewal commissions on the policies
he produced,
5, In or around March 1992, Plaintlfl' Charles M, Billys retired from the active
solicitation ofinsurlll1ce, but continued to service some existing policyholders oflhe Pat Anderson
Insurlll1ce Agency, at their request.
6. While acting as llI1 authorized sub-agent to the Pat Anderson Insurance Agency, Mr,
Billys IIctively solicited the purchase of long term care insurance products (policies) from
Prospective policyholders; took insurance applications; wrote and delivered policies llI1d serviced
policyholders 1'01' the Agency.
7, In exchange for performing his various duties as a sub.agent, Charles M, Billys was
paid commissions by the Pat Anderson Insurance Agency on new policies written by Mr. Billys and
the renewals of those policies as long as the policies remained in place llI1d the premium for the
policies were paid,
8, Plaintiff Charles M, BIUys was vested in his right to receive renewal commissions
on pollcies written throllgh the Pat Anderson Insurance Agency, in 1973,
9, Part and parcel to his sub-agency agreement with the Pat Anderson Insurance Agency
and consistent with the custom and practice of the insurlll1ce industry in the sale of Life, Accident.
2
and Health insurance, was the understanding that Mr. Billys' vested right 10 receive renewal
commissions would survive his death and also survive his retirement from the Pal Anderson
Insurance Agency conditioncd upon Mr, Billys rcfraining from sales with II competitor to thc Pat
Anderson Agency.
10. The amount of commissions paid to Mr. Billys by the Pat Anderson Agency was fifty
percent (50%) of premiums on first year business and a flat ten percent (10%) rate on renewal
business.
II, For twenty (20) years, pursuant to terms of his sub-agency agreement with the Pat
Anderson Insurance Agency, Mr. Billys received first year and rcnewal commissions at the
percentages set forth in paragraph ten (10) above from the Pat Anderson Insurance Agency on
policies placed by him, Copies of commission statements documenting payments to Plaintiff from
the Pat Anderson Insurance Agency arc jointly attached hereto as "Exhibit A" and incorporated by
reference herein,
12. The payment of commissions to the Plaintiff from the Pat Anderson Insurance
Agency ceased at the time of the death of its owner, Patricia D. Anderson, on June 20, 1996,
13. On December 31, 1996, through a written agreement ("the Agreement"), the Estate
of Patdcia D. Anderson was sold and was transferred to the Pat Anderson Insurance Agency with
all its interests and assets therein to Defendant Donald E, Barnes. A copy of the December 31, 1996
Agreement is attached hereto, incorporated herein and marked as "Exhibit BlI'
14. Prior to the execution of lhe December 31, 1996 Agreement (see, Exhibit B),
:1
31. As a result of Defendnnt's intentional, malicious and fraudulent stntements, Plaintiff
. has beQn deprived of vested renewal commissions to which he is entitled,
Count Three. Accountin/:
32. Pnragraphs I through 31 of the Complaintnre Incorporated herein as if set forth In
their entirety.
33, Defendant Donald E, Barnes, as successor to the Pat Anderson Insurance Agency,
accepted direct payment of commissions from insurance companies for renewal business on policies
written and/or placed by Chnrles M. Billys,
34. Plaintiff Charles M. Billys is unable to determine the exact commissions to which he
is entitled without all of the necessary account infonnatlon, including but not limited to, collections
of increases in premium amounts and lapsed policies, which is maintained by Defendant.
Quwt Four. Vnlus, Enrichment
35. Paragraphs I through 34 of the Complaint are incorporated herein as if set forth in
thllir entirety.
36. Since in or nround June 20, 1996, Defendant Donald E, Barnes has refused to pay
7
Relief l{eaUC5tclj
WHEREFORE, Plaintiff Chlldes M, Billys respectfully requesls this court to render
judgment with regard to all Counts In its favor Ilnd against Defendllnt Donllld E, Barnes, individually
and as successor in interest to the Pllt Anderson Insurance Agency, for the following:
n) Damages In an IImount in excess of $50,000 for Plaintiffs loss of commissions,
reasonuble anticipated income and other losses;
b) An Accounting;
c) Damages for unjust enrichment;
d) Punitive Damages;
e) Interest;
f) Costs of Suit and Attorney Fees; and
g) Such other relief as the Court may deem app~0priate.
Date: December 11, 1998
Re~~mitted'
By: ~ ~?<",,-_----........ __
,/~~el <1, Brown, Esquire
1.0,/179986
Balaban and Balaban
27 North Front Street
1',0. Box 1284
Harrisburg, I' A 17108-1284
(717) 234-3282
Attorney for Plaintiff
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. plnd their heirs, successors, assigns, pereonal representatives, do hereby covenant,
promise, nnd agree 8S follows:
1: Seller shall transfer any and alllntarest that it may have in any assets or
liabilities of the Pat Anderson Insurance Agency to Buyer, In consideration of the
payment of ONE THOUSAND AND 00/100 ($l,OOO.OOl DOLLARS, which was
determined to be the fair market value of the agency per the appraisal of the
decedent's accountant which is attached hereto and marked as Exhibit A.
2. Buyer shall continue to a~sume all responsibility for the operations of the
agency, and Is entitled to receive any and alllncom6 derived from any commissions
that have accrued since the date of decedent's death until the data of this
Agreement, and all those derived thereafter.
3. Seller shall contact any and all Insurance companies advising them of the
transfer of the agency to Buyer, and will take whatever steps are necessary to
divest Itself of any Interest It may have relative to the insurance companies.
4. Buyer agrees to provide Seller with en allocation of any and all Income
derived by daoedent until the date of her death which shall be attributable tl> her
1996 taxable Income, and will be responsible for any and all Income derived by the
agency. from the date of decedent's death on June 20, 1996, until the end of the
year. Further, Buyer agrees to provide any and all W-2 filings to any and all
employees of the agency for the 1996 taxable year, and further is responsible for
2
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RHONDAL. DAVIS
LAW OFFICES OF ROBERT B.
125
EAST THIRD STREET
WILLIAMSPORT, PA 17701
DEAR RHONDAI
IN RESPONSE TO YOYR LETTER OF NOVEMBER 4, 1996 REGARDING THE ESTATE
VALUATION OF'THE INSURANCE BUSINESS OF PATRICIA ANDERSON, I OFFER
THE FOLLOWING DATA.
NOVEMBER 12, 1996'
WAYNE
AS I MENTIONED TO YOU ON THE TELEPHONE, I AM NOW RETIRED AND HAVE
ONLY THE PREVIOUS FOUR YEARS OF TAX RECORDS IN MY POSESSION.
HOWEVER, THESE FORU YEARS GIVE A FAIR REPRESENTATION AS TO THE
VALUE OF HER PRACTICE AT THE TIME OF HER DEATH. ALL TilE FURNITURE
AND EQUIPMENT SHE USED WAS FULLY DEPRECIATED FOR TAX PURPOSES AT
THE TIME OF HER DEATH. HER GROSS FEES FROM INSURANCE COMPANIES
DECREASED 37' BETWEEN 1992 AND 1995 (143,000 TO 90,300). THIS WAS
DUE TO SEVKRAL REASONS. (1) A DECREASE IN PERCENTAGE OF COMMISSIONS
ON POLICIES WRITTEN, BY SEVERAL OF THE COMPANIES. (2) A DECREASE
IN THE NUMBER OF COMPANIES FOR WHICH SHE WAS ABLE TO . waITE
INSURANCE. SOME COMPANIES WILL TERMINATE AN AGENT UNLESS A CERTAIN
VOLUME OF BUSINESS IS WRITTEN. (3) A LOSS OF SEVERAL AGENTS, WHO
AFTER LEAVING, BEGAN TO WRITE POLICIES WITH THE SAME COMPANIES.
ALTHOUGH HER BOTTOM LINE WENT FROM A LOSS OF $3309 IN 1992; A LOSS
OF $8776 IN 1993, TO A PROFIT OF $9806 IN L994 AND $5893 IN 1995/
THESE INqREASES WERE DUE TO THE MAJORITY OF WORK BEING DONE OUT OF
HER HOME, THEREBY REDUCING OPERATING EXPENSES TO THE BONE. HOWEVER,
THIS CERTAINLY IS NOT A LIVING TO BE EARNED BY A PERSON WITH THE
RESPONSIBILITY OF OPERATING A BUSINESS AND ITS HEADACHES. FACTOR
IN A MINIMUM $15,000 A YEAR SALARY, AND IT IS OBVIOUS THAT THIS IS
A NEGATIVE OPERATION.
PATRICIA ANDERSON HAD A COMFORTABLE LIFE STYLE, BUT IT IS BECAUSE
OF THE INHERITANCE FROM HER FIRST HUSBAND, AND INCOME SHARED WITH
HER SECOND HUSBAND, RUDY, THAT MADE HER LIFESTYLE WHAT IT WAS. FRO~I
THE ABOVE FIGURES YOU CAN ASSUME PROPERLY, THAT SHE HAD TO INFUSE
HER OWN FUNDS TO KEEP THE AGENCY AFLOAT.
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6, Denied, Defendant Donald E, Barnes Is without knowledge or
Information sufficient to form a belief as to the truth of the averment of
Paragraph 6 and specific proof thereof Is demanded Elt trial.
7. Denied, Defendant Donald E. Barnes Is without knowledge or
Information sufficient to form a belief as to the truth of the averment of
Paragraph 7 and specific proof thereof Is demanded at trial.
8, Denied. Defendant Donald E, Barnes Is without knowledge or
Information sufficient to form a belief as to the truth of the averment of
Paragraph 8 and specific proof thereof Is demanded at trial.
9, Denied, Defendant Donald E. Barnes Is without knowledge or
information sufficient to form a belief as to the truth of the averment of
Paragraph 9 and specific proof thereof Is demanded at trial.
10. Denied, Defendant Donald E. Barnes is without knOWledge or
Information sufficient to form a belief as to the truth of the averment of
Paragraph 10 and specific proof thereof is demanded at trial.
11. Denied, Defendant Donald E. Barnes is without knowledge or
Information sufficient to form a belief as to the truth of the averment of
Paragraph 11 and specific proof thereof Is demanded at trial.
12, Denied. Defendant Donald E. Barnes is without knowledge or
Information sufficient to form a belief as to the truth of the averment of
Paragraph 1 2 and specific proof thereof Is demanded at trial.
2
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13, Denied. It Is denied that on Deoember 31, 1996, through II written
agreement the estete of Patricia D. Anderson WBS sold, On December
31, 1996, through a written agreement, the estate of Patricia D.
Anderson, by and through Its executor, Steven B. Coslett, of 3282 S,E,
River Vista Drive, Port St. Lucie, Florida, sold any and all Interest In the
Pat Anderson Insurance Agency, which was an asset of the decedent
at the time of her death, to Donald E, Barnes.
14. Admitted.
15, Admitted in part, denied In part. It Is admitted that In or around July of
1996, Plaintiff requested payment from Defendant Donald E. Barnes for
renewal commissions for June 1996. It Is denied that Defendant Donald
E. Barnes told Plaintiff that he would be paid when they were received,
16. Denied, It Is denied that on numerous occasions "after to June of 1996,
Plaintiff requested Defendant Barnes to pay him renewal commissions
from the Pat Anderson Insurance Agency which were overdue; and was
told by Defendant that there were attorney fees which Defendant
needed to pay In connection with the death of Patricia D, Anderson,
which once paid would allow for the remittance of commissions to Mr.
Blllys", and sp~clfic proof thereof is demanded at trial. By way of
further answer, it Is denied that renewal commissions were due or
overdue to Plaintiff. Furthermore, Defendant Donald E. Barnes made no
3
representation to Plolntlf'f that remlttanoe of commissions would be
made to Plaintiff.
17. Admitted In part, denied In part, It Is admitted that pursuant to
Paragraph 2 of the Agreement Included as Exhibit "B" of Complaint,
Buyer Donald E, Barnes "shall continue to assume all responsibility for
the operations of the Agency, and Is entitled to reoelve any and all
Income derived from any commissions that have accrued since the date
of decedent's death until the date of this Agreement, and all those
derived thereafter," It Is denied that Paragraph 2 of the Agreement
Included as Exhibit "B" of Complaint Includes the remittance of vested
renewal commissions to Plaintiff accruing since June 20, 1996,
18. Admitted In part, denied In part. It Is admitted that pursuant to
Paragraph 4 of the Agreement Included as Exhibit liB" of Complaint,
Buyer Donald E. Barnes was "responsible for the payment of any and all
debts and liabilities of the Agency that accrued from the date of
decedent's death until the date of this Aareement." Emphasis added.
It Is denied that debts and liabilities accrued from June 20, 1996, in
Paragraph 4 of the Agreement included as Exhibit "B" of Complaint
included the remittance of vested renewal commissions to Plaintiff.
19, Admitted In part, denied In part, It Is admitted that Plaintiff has
demanded payment of commissions from Defendant Donald E. Barnes.
It is denied that Plaintiff Is entitled to vested renewal commissions.
4
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20. Denied. Defendant Donald E, Barnes Is without knowledge or
Information sufficient to form a belief as to the truth of the averment of
Paragraph 20, and specific proof thereof Is demanded at trial.
Count OD!!
21. The averments of Paragraph 1 through 20 are Incorporated by reference
as If fully set forth.
22. Denied, Defendant Donald E. Barnes Is without knowledge or
Information sufficient to form a belief as to the truth of the averment of
paragraph 22 and specific proof thereof Is demanded at trial.
23, Denied. It Is denied that Plaintiff had a contract with the Pat Anderson
Insurance Agency that provided that Plaintiff would solicit long.term
care Insurance policies for the Agency and in return would receive
compensation In the form of commissions from the Pat Andersol1
Insurance Agency and Its successor Agency, and specific proof thereof
Is demanded at trial,
24. Denied. The Pat Anderson Insurance Agency has been defunct since
Dt)cember 31, 1996. Furthermore, Defendant Donald E, Barnes Is not
wrongfully withholding any commissions from Plaintiff,
26. Denied. It Is denied that renewal commission payments are due Plaintiff
from the Don Barnes Insurance Agency, and specific proof thereof is
demanded at trial.
5
26, Denied. It Is denied that Defendant Donald E, Barnes Informed
pollnyholders that Charles M, Blllys was dead. By way of further
answer, Defendant Donald E. Barnes made no knowing and willful effort
to have policyholders cancel policies written by Plaintiff.
27. The allegations of Paragraph 27 state a legal conclusion requiring no
answer.
28. The allegations of Paragraph 28 state a legal conclusion requiring no
answer. By way of further answer, It Is denied that Defendant Donald
E, Barnes has committed fraud,
Count Two
29. Paragraphs 1 through 28 are Incorporated by reference as If fully set
forth.
30. Denied. The averments of Paragraph 30 state a legal conclusion to
which no response Is required, By way of further answer, Defendant
Donald E. Barnes made no false representation to any policyholders that
Plaintiff was deceased.
31. Denied. The averments of Paragraph 31 state a legal conclusion to
which no response Is required. By way of further answer, it Is denied
that Plaintiff Is entitled to vested renewal commissions from the Pat
Anderson Insurance Agency.
6
Count Thfe~
32. Paragraphs 1 through 31 are Incorporated by re'ference as If fully set
forth.
33, Admitted, By way of further answer, two (2) years before Patricia D.
Anderson's death, Patricia D, Anderson assigned various accounts to
Defendant Donald M, Barnes due to non-servicing by Plaintiff.
Furthermore, Plaintiff Charles M. Blllys failed to repay the Pat Anderson
Insurance Agency for the rescissions of the policies written by Plaintiff.
34. Denied. Defendant Donald E. Barnes Is without knowledge or
Information sufficient to form a belief as to the averment of Paragraph
34, and specific proof thereof is demanded at trial. By way of further
answer, it is denied that Plaintiff Is entitled to an accounting by
Defendant Donald E, Barnes without proof of a contract between the Pat
Anderson Insurance Agency and Its heirs, executors, successors or
assigns.
Count..f2yr
35. Paragraphs 1 through 34 are Incorporated by reference as if fully set
forth.
7
36, Admitted In part, denied in part, It Is admitted that Defendant Donald
E. Barnes has not paid Plaintiff renewal commissions, By way of further
answer, It Is denied that Plaintiff Is entitled to renewal commissions on
insurance policies which he placed through the Pat Anderson Insurance
Agency and that Plaintiff Is vestad,
37. Denied, The averments of Paragraph 3'1 state a legal conclusion
requiring no answer, By way of further answer, It Is denied that
Defendant Donald E. Barnes has Illegally retained an,! commissions of
Plaintiff.
38. The averments of Paragraph 38 state a legal conclusion requiring no
answer.
~EW MATT.m
39, Plaintiff has failed to state a causa upon which relief can be granted.
40. Plaintiff has waived the claims set forth In his Complaint.
41, Plaintiff Is estopped from assNtlng the claims set forth In his Complaint.
42. The claims set forth In the Complaint are barred by operation of the
doctrine of the Parol Evidence Rule.
43. The claims set forth In the Complaint are barred by the applicable
Statute of Limitations.
44. The claims set forth In the Complaint are barred by failure of
consideration.
46. Plaintiff has no contract with the Defendant,
8
CHARLES M. BILL YS,
Plaintiff
IN TIlE COURT oV COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLV ANIA
No. 98-2412
v.
DONALD l\, BARNES, a~ succe~sor
in Interest to the Pat Anderson Insurance
Agency and indivlduully,
D~f~ndant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
CERTIFICATE
PREREQUISITE TO SERVICE OF A SU\WOENA
PURSUANT TO RUU: 4009.22
'" , ,,,,,qu"'" to ",,'00 of , "bp"'" fo> '''' um"" ,m! thl"" pu~u",t " Rul'
4009.22, Plaintiff Charles M. Billys certilics that:
( , ) "",,,won,,,", to ,,'" tho """,,"' wit, , ,,"' ,oho ",,,,,,, "'t",,", "....'
was mailed or delivered to each party at least twenty (20) days prior to the date on
which the subpoena is sought to be served,
(2) ,,," 01" out'" uf I'''"', ,,, Iud'"~ tho pm,,,,", "'P""'" " ,,,,,,hod to ",.
eertilicate,
(3) no objection to the subpoena has been received, and
(4) tho "bl"'" whl,b w\1\ ho ,,",' ;, I'''''''' to tho "b,,,,," wh"b ;, ""bud to
the notice of intent to serve the subpoena,
Date: April 22, 1999
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Michael <1, Brown, Esquire
l.D, #79984
Balaban and Balaban
27 North Front Street
P.O. Box 1284
Harrisburg, PA 17108- 1284
(7\7) 234-3282
Attorney for Plaintiff
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Exhibit HA"
I, All documcnts, including, but not limited to, Illes, records, accounts, agent
statements and conunission detnils, concerning (:hnrles M, Ilillys Ihllll January 19911
through to the prcscnt;
2, All doclllmmts, including, but not limitcd to, lilcs, records, accounts, agent
statcments nnd commission ddnils, conccrning I )onl\ld 1'.. Hamcs 1'1'0111 January I ()<)()
through to the prcsent;
), All documcnts, including, but not IimitcJ 10, I1lcs, rccords, accounts, lIgent
statements and commission dctails, concel'lllngl hc i'nt Andcrsoo insurancc Agcncy
fro 111 January 1996 tbrough to the pl'l'sent;
4. All documents, including, hut not limited to, insurance policies, identifying Charles
M, Biilys as the writing ngent 01' ngcnt 01' rccord Ii))' an insurance policy issucd by
Penn Treaty Life Insurance Company from Jnnuary I'll)(, through to the present.
tJ:lO&mCI,IHNTS\JJ411l11.I:YSIsUbo.,hlh
IN THe COURT OF COMMON PLfAS OF CUMBfRLAND COUNTY, PfNNSYL VANIA
CHARLI!S M. BILLYS,
P','ntl"
vs.
DONALD E. BARNES, as successor In
Interest to the Pat Anderson Insurance
Agency and Individually,
Dcl'wnd.nt
CIVIL ACTION - LAW
NO. 9S. 2412
(:~RTIFICATE OF SI;RVIg;
I, Rhonda l.. Davis, Attorney for Defendant, hereby certify that a true and correct
copy of the foregoing Defendant's Response to Plaintiff's First Request for
Production of Documents was served on Michael V, Brown, Esquire, by U,S. Mall, First
Class, at the address of Governor's Row, 27 North Front Street, P,O. Box 1284, Harrisburg,
Pennsylvania 17108-1284.
ELlON, WAYNE, GRIECO, CARLUCCI,
SHIPMAN 8r. IRWIN, P.C.
BY:
Rho da L. Davl , quire
Attorney for Donald E. Barnes, Defendant
10# 80040
125 East Third Street
Wllllamsport, PA 17701
(570) 326-2443
C'.
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DATf'!1 Novem~et 10, 1999
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~ONCLtJSION
In view 01' the foregoing, I'luintll'l's' Murch 22,2000 Motion should be grunted und lIctlon
Nos, 98-2412 und 00-2698 consoliduted,
Respectfully submitted,
By:
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M ehue1 V, Brown, Esquire
LD, 1179984
Buluban and Baluban
27 North Front Street
\,,0, Box 1284
Harrisburg, P A 17\ 08-1284
(717) 234-3282 - voicc
(717) 233-4264 . lilcsimile
----..-.-....-
Date: May 22, 2000
Attorney for Plaintiffs
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CI{R'I'IFICATI{ OF SF.IWICI~
ANo NOW, this 22"'1 day of Mny, 2000, I. Michael V Brown, Esquirc, hereby ccrtify that
on this dUy, I served n true and correct copy of the ((lrel:\oinl\ MClllorlluduln of Law In Support of
Plaintiffs' Motion for Consolidatiou of Actions upon the \<ll1owing individual by plncing this
document in the United States Mail. postage prepaid for Iirst dnss ddivery:
Rhondn L. Davis, Esquire
Elion, Wayne, Orcieo, Carlucci,
Shipman & Irwin, I'.C.
125 East Third Street
Wllliamsport, I'A 17701
Attorney for Defendant
~~~~-
By:
O:\BAR\CLUlNTS\.1:l4\OILL '{S\CHRT4.~VC
A~(IlJMI';NT
lindeI' Penn:;ylvania law it is a well.aeeepted praetiee 1'01' a court presented with separute
actions involving thc same parlies and 11 common question of law and IllctlO order sueh aetions
consolidated into 11 single aelion, since eonsolidalion will hclp to avoid a multiplicity or lawsuits:
prcvent inconsistenl vcrdicts: save time and expensc Ill!' the partics; and serve judicial eeonoll1Y.
See, Anchor Motor hei~ht, !rw. v. Koser. 10 D. & (' Jd 497 (I (79); Ronca \'.J}ritish & .l"oJ'(~i~n
,Murine Ins. Co" J 14 I'a. 449, 172 A. 475 (1<)34); f)zinger v. Penns.ylyania R. Co., 262 Pa. 242. 10S
A, 1I7 (19111).
Relative to eons(llidation of actions, Rule 213(a) of the I'ennsylvnnia Rules of Civil
l'rocedUle provides as 11)lIows:
In actions pending in a county which involvc a common question of1aw or r~ct, or
which arisc from the same trnnsaction 01' occurrence, thc court on its own motion or
on the motion of any party may ordcr a joint hearing or trial of any mailer in issuc
in the actions. may order the actions consolidated, and may makc orders that avoid
unnecessary cost or delay, Pa. R.Civ.p. Rule 2.13(a).
The prcsent actions bcfore this court, Nos. 911-2412 and 00-26911, are ripe for consolidation
in that both actions prcsent common questions of law and (llet and arise from the same trnnsaction.
In PlaintiffBillys' action, No, 911.2412, and likewise, in PlaintilTSims' action, No. 00-26911,
an orlll contract is ullcged between the plaintiff and Defcndant Barnes.
In exchangc for performing his vurious duties as a sub-agent, Charles M.
Billys was paid commissions by the Pat Andersonlnsurancc Agency on new policies
written by Mr. Billys lInd the renewals of those policies us long as the. policies
remained in place und the premium for the policies were paid. (Billys Complaint,
No. 911-2412, '\7).
**~
The amount of eommissions paid tn Mr. Ilillys by the Pat AtlClcrson Agency
was liI'ty pere(~nt (50%) of premiums on lirst year business and u Ilat ten percent
(10011') rate on renewal husiness. (Billys Complaint, No. 911-2412, '110).
3
2. Pluintiff Sims' Complulnl nlleges three euuses of netion: breneh of eontl'llet.
uecounting and unjust emidllnenl all of which stcm Ihlm nn nllcgcd oml contract
bctween PllIintllT nnd Dctcndnnt involving n~ncwnl commissions pnid on insurance
contl'llcts.
3. Also bethre this Courl is the Complaint of Plainliff Chmles M. Hillys ("Plnintiff
Billys") ngainst Dclcndantl3nl'l1cs, No. 98-2412, which was liIed on Dccember II.
1998.
4. With the exception of an additional allegation of misreprelientlltion/fraud, Plaintiff
Billys' Complaint is idenlicalto I'laintiffSims' Complainl in thai iltoo makes claim
for breach ofeontract,lIccounting nnd unjust cl1l'ichment slemming fI'om an alleged
oral contract bctween I'lnintiff and Defendant involving renewal commissions paid
on insurance contmels.
5, A consolidation of these two nclions will not prcjudice any substantial right ofany
party to cither action and will be desimble because both actions present common
questions of law and fact in that both actions, with the exception of the plaintiffs
involved, allege the existence and breach of identkal oml contracts with the same
Defendant; and their eonsolidutiontherefore will nvoid 1I multiplicity of suits; reduce
unnecessary costs and prevent the possibility of inconsistent orders.
6, In accordance with Local Rule 206.2, counsellhr Plainliffs Billys and Sims has
conferred with counsel li)l' Detcndant Barnes, and has bcen notified that the
Defendant in both mutters, Donald E. Barnes will not concur in the consolidation of
these cases.
2