HomeMy WebLinkAbout98-07325
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PRAECI PE FOR LISTING GISE FOE ARGUMENT
(Must be typewritten and submitted in duplicate)
'0'0 THE PEOTHONOTARY OF CUI~BEELAND COUNTY:
P18aSe list. the within llli..-ttt..:::r f:e,:.- t:.hc next lu:gument Court.
CAPTION OF CASE
(entire caption ~lst be stated in full)
SCOTT'S PINE TREE INN, INC,
(Plaintiff )
vs,
ERIE INSURANCE EXCHANGE
(Defendantl
No, 98-7325 civil Action
I. State matter to be argued (i.e., plaintiff's motion for new
trial, defendant 's demUrrel" to complaint, ete.):
Defendants' Pl'eliminal'Y Objection:~
'J
Identify counsel \-.1110 will :trgue ca:~e:
(a) for plaintiff: Richard vii}:. Esquire
j;ddress: vJix, \'Jengel: & l'Ji dlH~l'
4'7'05 Duke Street
Harrisburg, PA 1'71.09-3099
{b) fcr dcfcnda:"lt: Michael F. 1-!':?l]ry I FSC]ll:i n:~
Address:
Co:en & O'Connor
] 900 l~arket Street, The lltrium
Phi13(ielphiJ, I'll i ,,]03
:'- I will notify all partie:::; ill 'Nl'it :nq within t.wo days that
this case has
heel1 listed fOl~ ~rgtJml~nt.
.l. Argumeu t Cou ~ t
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I N THE COURT OF Cot-V-lON PlEAS
CUMBERLl\ND COUNTY, PENNSYl.VANIA
q~- '73d5 (' U..1.Jner(Y\
No. :t9
Civil Action - (X)-ra.;-
( ) Equity
Scott's Pine Tree Inn,
Incorporated
1706 Centervil1e Road
Newville, Pl\ ]7241
Erie Insurance Exchange
4901 Louise Drive
P.O. Box 2013
Mechanicsburg, Pl\ 17055-07]0
vers us
Plaintiff(s) I>
Address(es)
Defendant(s) &
Address(es)
PRAEC I PE FOR WR IT OF SUI+lONS
TO THE P~OTHONOTARY OF SAID COURT:
Please issue writ. of summons in t'he above-captioned action.
X Wr i t of Summons sha II be j ssued aITd forwarded to ( )Attorney (x)Sher i ff
Richard H. Wix, Esquire
Wix, Wenqer & Weidner
4705 Duke Street
Harrisburq, PA 17109-3099
(717) 652-8455
Names/Address/ TelepholT No.
of Attorney
~Q ~ LJ
Signature of Aftorney
...---
(
Supreme Court ID No. 07274
Date: Decpmber 3]. 1998
WR I T OF SUIMlNS
TO THE ABOVE NA~1ED DEFENDANT( S):
YOU ARE NOTIFIED THAT THE ABOVE..NAl-1ED PLAINTIFF(S) HAS/HAVE COIO\'J,ENCED AN
ACTION AGAINST YOU.
Date:>> 3/-9,(
/ti U<
) Check here jf reverze iz i'~u('d for additional informat ion
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2. The plaintiff, Scott's Pine Tree Inn, Inc., is a
citizen of the Commonwealth of Pennsylvania.
3. The defendant, Erie Insurance Exchange, is a
citizen of the Commonwealth of Pennsylvania.
4. The State Action involves claims by plaintiff,
Scott's Pine Tree Inn, Inc., for insurance proceeds it claims it
is owed under a policy of insurance issued by defendant Erie
Insurance Exchange to Scott's Pine Tree Inn, Inc. for a property
located at 1710 Centerville Road, Newville, Pennsylvania.
5. The State Action is a proceeding related to the
Chapter 11 bankruptcy proceeding initiated by Scott's Pine Tree
Inn, Inc., on October 10, 1997, in the United States Bankruptcy
Court for the Middle District of Pennsylvania pursuant to 11
V.S.C. ~ 1121, docketed as case number 97-04317.
6. The claims at issue in the State Action are
necessarily related to the bankruptcy proceeding instituted in
federal court by Scott's Pine Tree Inn, Inc. by virtue of the
fact that the insurance proceeds under the Erie Insurance
Exchange policy of insurance is the sole asset of the bankruptcy
estate and the plaintiff seeks recovery of said proceeds.
7. This court has original jurisdiction over the
State Action, a non-core bankruptcy proceeding, because the suit
is related to the underlying bankruptcy case. See 28 U.S.C.
~!iU34 and 10141.
8. Judicial economy, fairness, and convenience to the
parti es \Vi 1.1 be served by removinq the State Act ion to the
- :~
(M'l.;~,
federal district court where the contract action can be litigated
before a jury and the United States District Court for the Middle
District of Pennsylvania.
9. Erie has simultaneously filed a Notice of Removal
with this Court seeking to remove a state action initiated in the
Court of Common Pleas of Cumberland County by Harlan and Jean
Kahler, husband and wife, by the filing of a Complaint against
Erie Insurance Group, Erie Insurance Exchange, Weitzel Insurance
Agency, Donald S. Weitzel, Sr. and Donald S. Weitzel, Jr.
10. The state action filed by Harlan and Jean Kahler
is also a related proceeding to the Scott's Fine Tree Inn, Inc.
bankruptcy action, because the Erie Insurance Exchange policy
proceeds are the sole asset of the bankruptcy estate, and both
Harlan and Jean Kahler and Scott's pine Tree Inn, Inc. have made
claim to said proceeds.
11. Defendants request a trial by jury in federal
district court.
12. This notice is timely filed, pursuant to 28 U.S.C.
11446(b), within the thirty (30) days of the receipt by
defendants of a copy of the summons filed in the State Action.
13. A copy of this Notice of Removal is being filed
wi th the Pl:othonotary of the Court of Common Pleas of Cumberland
County and is being served upon Plaintiff pursuant to 28 U.S.C. I
1446 (d) .
- ] -
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SCOTT'S PINE TREE INN, INC.
Plaintiff,
CIVIL ACTION NO.
v.
ERIE INSURANCE EXCHANGE
Defendant.
JURY TRIAL DEMANDED
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
PLEASE TAKE NOTE that a Notice of Removal of the above
captioned action has been filed in the united States District
Court for the Middle District of Pennsylvania, pursuant to 28
U.S.C. sections 1441 and 1334 containing a statement of facts
which entitles this matter to be removed.
A copy of said Notice of Removal is attached hereto,
together with a copy of all processes, pleadings and orders
served upon it.
BY:
COZEN &
HENRY, ESQUIRE
PRIOLI, ESQUIRE
Attorneys,for Defendants,
Erie Insurance Group,
Erie Insurance Exchange,
Weitzel Insurance Agency,
Donald s. Weitzel and
Donald S. Weitzel, Jr.
Dated: January 20 1999
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11 7/90 12:36PMj ...
THU 13:31 FAX 91~515060
916144515060
.> COZEN & O'CONNOR;
Pogo 2
~ 002 _
Scott's Pine Tree Inn,
Incorporated
1706 Centerville Road
Newville,. PA 17241
I N THE COURT OF COlfolON PlEAS
C~MBER~~~ COUNTY, PENNSYLVANIA
No. 9 ~-'1.342 w4J.
Civi I Action - (X) Law
( ) Equity
Erie Insurance EXchange
4901 Louise Drive
P.O. Box 2013
Mechanicsburg, PA 17055-0710
vel'S us
Plaintiff(s) &
Address(es)
Defendant( s) &
Address(es)
TO THE PROTHONOTARY OF SAID COURT:
PRAECIPE FOR ~RiT OF SUMMONS
Please issue writ of summons in the above-captioned action.
x Writ of Summons shall be issued and forwarded to ( )Attorney (X)Sheriff
Richard H. Wix, ESqUire. ,~__ c:7 ~ ~ ( ~
Wix. Wenqer & Weidner _ ~.~ ~
4705 Duke Street Signature of A torney
Harrishurq. PA 17109-3099
(717/ 652-8455 Supreme Court 10 No. .JLL274
Names/Address/ Telephon No.
of Attorney Date: December 31. 1998
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WR I T OF SUfio1ONS
TO THE ABOVE NAMED DEFENDANT(S):
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTlFF(S) HAS/HAVE COW,ENCCD Atl
ACTION AGAINST YOU.
Date: /",,1-, 5/- 9-("
by
IT"OH, - 55
( ) Check here if reverse is issued for additional information
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I N TIlE COURT OF C(HolON PLEAS
CUMBERLI\ND COUNTY, PENNSYI.VANIA
q8" (7 3'~"- l\,clJ.ncl ('0',
No. - 0) -'\:9
Civi I Action - (X)"LiiW
( ) Equ i ty
Scott's pine Tree Inn,
Incorporated
1706 Centervi11e Road
Newville, PI\ 17241
Erie Insurance Exchange
4901 Louise Drive
P.O. Box 2013
Mechanicsburg, PI\ 17055-0710
versus
Plaintiff{s) &
Address(es)
DefeITdant( s) &
Address (es)
PRAECIPE FOR WRIT OF SUMMONS
TO THE PROTHONOTARY OF SAID COURT:
Please issue writ of summons in the above-captioned action.
X Writ of Summons shall be issued and forwarded to ( )Attorney (x)Sheriff
Richard H. wix, Esquire
Wix, Wenqer & Weidner
4705 Duke Street
Harrisburq, PA 17109-3099
(717) 652-8455
Names/Address/ Telephon No.
of Attorney
c=ct:~-R +-~ ~9
Signature of Aftorney
~
,
Supreme Court ID No, 07274
Date: December 31. 1998
IIR IT OF SUt+lONS
TO THE ABOVE NAMED DEFENDANT(S):
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN
ACT I ON AGA I fiST YOU.
Date: /{) 3/-9(_
Deputy
) Check here if rcvcr~e is issued for l:Jddi1"icn~1 iiiformation
PROTHO"i. - ~5
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TERMED HBG
REMAND
u.s. Distriet Court
Middle District of Pennsylvania (Harrisburg)
CIVIL DOCKET FOR CASE D: 99-CV-I08
Scott's pine Tree v. Erie Insurance Excha
Assigned to: Judge Yvette Kane
Demand: $565,000 42041
Lead Docket: None
Dkt# in other court: None
Filed: 01/21/99
Jury demand: Plaintiff
Nature of Suit: 110
Jurisdiction: Federal Question
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Cause: 28:1441 Petition For Removal--Other Contract
SCOTT'S PINE TREE INN, INC.
plaintiff
Richard H. wix
[COR LD NTC]
Wix, Wenger & Weidner
4705 Duke St.
Harrisburg, PA 17109-3099
(717) 652-8455
v.
ERIE INSURANCE EXCHANGE
defendant
Michael F. Henry
[COR LD NTC]
Cozen & O'Connor
1900 Market Street
4th Floor
Philadelphia, PA 19103
215-665-2166
Madeline Caprioli
[COR LD NTC]
Cozen & O'Connor
1900 Market Street
The Atrium, 5th Floor
Philadelphia, PA 19103
(215) 665-2072
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Docket ai:; of December 1S, j~)~..\, 10:::;3 am
Page: 1
~..-
Proceedings include all events.
1:99cv108 Scott's Pine Tree v. Erie Insurance Excha
TERMED
BEG
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1/21/99 1
REMAND
PETITION FOil REMOVAL from Cumberland County Court, Case
Number: 98-7325. Jury trial demanded. Cis. Receipt jj:
127487 Amt: $150.00 Writ of summons (no complaint) (tm)
[Edit date 01/21/99]
1/21/99
1/22/99 2
REMARK - copy of dkt. to J. Kane. (tm)
LETTER from court to counsel RE: case assignment &
procedure. (jk) [Entry date 01/25/99]
2/9/99
2/17/99 3
ATTORNEY SPECIAL ADMISSION form
Caprioli on behalf of Erie Ins.
approval. Receipt #: 111-127670
[Entry date 02/16/99]
REQUEST OF ATTORNEY FOR SPECIAL ADMISSION to practice on
behalf of Erie Insurance Exchange by Madeline Caprioli
APPROVED by court. Rec jj 111 127714 Amount: 10.00 (sc)
[Entry date 02/18/99]
received from: Madeline
forwarded to judge for
Amt: $10.00 (mal
2/18/99 4
MOTION by defendant for consolication with I:CV-99-109.
Cert of non-cone. cis & propo. (tm) [Entry date 02/19/99]
[Edit date 02/23/99]
2/18/99 5
BRIEF by defendant IN SUPPORT of motion for consoli cation
with 1: CV-99-109. [5-1] (tm) [Entry date 02/19/99]
[Edit date 02/23/99]
3/22/99 6
~OTION by defendant Erie Insurance Exchange for oral
argument on dft' s motion to consolidate. With c of s. (ma)
[Entry date 03/23/99]
3/22/99 7
REPLY BRIEF by defendant Erie Insurance Exchange in support
of their motion for consolidation with 1 :CV-99-109. [4-1].
With c of s. (ma) [Entry date 03/23/99]
4/26/99 8
MOTION by defendant to require plntf. to file a complaint
Cert. non-cone. (tm)
4/26/99 9
BRIEF by defendant IN SUPPORT of motion to require plntf.
to file a complaint [8-1] Cis. (tm)
SECOND MOTION by defendant Erie Insurance Exchange
(collectively "Defendants") to consolidate cases: No.
1:CV-99-1617 w/ No. 1:CV..99-0108 and No. 1:CV-99-0109;
Propo. (vg) [Entry date 09/29/99]
MEf-l0RANDUM by defendant Erie Insurance Exchange
(collectively "Defendants") IN SUPPORT OF second motion to
consolidate cases: No. ] :CV-99-1G17 w/ No. 1:CV-99-0108 and
No. 1:CV-99-0109 !ll-J]; CIS; Cert. of Non-Cone. (vg)
!Entry date 09/29/99]
9/28/99 11
9/28/99 12
Docket as of D~cember 15, 1999 10:53 all]
rage 2
Proceedings include all events.
1:99cvl08 Scott's Pine Tree v. Erie Insurance Excha
TERMED
BBG
9/28/99 13
REMAND
ORDER by JUdge Yvette Kane: Scheduling conference will be
conducted at 9:00 a.m. on 11/10/99. "Joint Case Mgmt. Plan"
form due 11/3/99. (cc: Ct:., all counsel) (vg)
[Entry date 09/29/99J
9/28/99 10
MOTION with BRIEF IN SUPPORT by defendant Erie Insurance
Exchange to dismiss two captioned actions (No.
1:CV-99-0108 and No. 1:CV-99-1617) against dfts. Erie
Insurance Group and Erie Insurance Exchange pursuant to
FRCP 12 (b) (6); cis; Cert. of Non-Conc.; Propo. (vg)
[Entry date 10/04/99J
10/1/99 14
COMPLAINT - Jury trial demanded. Re: Breach of insurance
contract. (sc) [Entry date 10/04/99]
RESPONSE (captioned: Answer) by plaintiff Scott's Pine Tree
Inn, Inc. to Dfts' mtn to dismiss; with cis. (sc)
[Entry date 10/12/99J
10/8/99 15
10/8/99 16
MEMORANDUM by plaintiff Scott's Pine Tree Inn, Inc. IN
OPPOSITION to Dfts' motion to dismiss two captioned actions
(No. 1:CV-99-0108 and No. 1:CV-99-1617) against dfts. Erie
Insurance Group Erie Insurance Exchange pursuant to FRCP
12 (b) (6) [10-1]; reply brief due 10/21/99; with c/s. (sc)
[Entry date 10/12/99]
10/25/99 17
MOTION by defendant Erie Insurance Exchange to dismiss
cmp. filed by Scott's Pine Tree Inn, Inc. in it's second
action as captioned above; cis; Cert. of Non- Conc.;
Propo. (vg) [Entry date 11/16/99]
10/25/99 18
MEMORAND~l by defendant Erie Insurance Exchange IN SUPPORT
OF motion to dismiss cmp. filed by Scott's pine Tree Inn,
Inc. in it's second action as captioned above pursuant to
FRCP 1.2 (B) (6) [17-1]; CIS; Cert. of Non-Conc. (vg)
[Entry date 1.1/16/99]
10/27/99 19
REPLY BRIEF by defendant Erie Insurance Exchange in support
of motion to dismiss two captioned actions (No. I:CV-99-0108
and No. 1:CV-99-1617) against dfts. Erie Insurance Group
Erie Insurance Exchange pursuant to FRCP 12(b) (6) [1.0-1];
Cis. (vg) [Entry date 10/28/99] [Edit date 11/16/99]
10/27/99 20
MOTION by defendant Erie Insurance Exchange for oral
argument on mtn. to dism. two captioned actions
(1:CV-99-0108 and 1:CV-99-1.617) against dfts. Erie Insurance
Group and Erie Insurance Exchange pursuant to FRCP
12 (b) (6). (vg) [Entry date 10/28/99]
[Edit date 11/16/991
11/3/99 21
C/ISE r~ANl\GEr"ENT FORM returned by cnsl. (j h)
[Entry date .11/0.1/99] [Edit date 11/16/99]
Docket af3 of December ] ~:) I J Ci'-,l, 10: S3 (1m
Page 3
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Proceedings include all events.
1:99cvl08 Scott's Pine Tree v. Erie Insurance E:-:cha
11/10/99 22
11/12/99 23
11/12/99 24
11/23/99 25
11/24/99 26
11/24/99 27
12/14/99 28
12/15/99
12/15/99
TERMED
HBG
REMAND
ORDER by Judqe Yvette Kane - IT IS HEREBY ORDERED THAT the
Case Mgmt. Conf. is rescheduled to 10:00am on 11/23/99 for
all parties (cc: Ctrm dpty, all counsel, court) (sc)
[Entry date 11/12/99] [Edit date 11/16/99]
ORDER by Judge Yvette Kane that: 1) Dft's mtn. to
consolidate this action w/ No. I:CV-99-1617 w/ No.
I:CV-99-0109 and No. I:CV-99-0109 is DENIED as moot. [11-1]
2) Dft's motion to require plntf. to file a complaint is
DENIED as moot. [8-1] (cc: all counsel court) (vg)
[Entry date 11/15/99] [Edit date 11/16/99]
MEMORANDUM by plaintiff Scott's Pine Tree Inn, Inc. IN
OPPOSITION motion to dismiss cmp. filed by Scott's Pine
Tree Inn, Inc. in it's second action as captioned above
[17-1]; reply due 11/25/99; Cis. (vg) [Entry date 11/16/99]
MINUTE SHEET
termddJ.. (pm)
of CMC held on 11/23/99 before J"udge Kane,
[Entry date 11/24/99]
CASE MANAGEMENT ORDER by JUdge Yvette Kane _ Jury trial
set for 11/6/00; Jury selection set for 9:30 a.m. on
11/6/00; Discovery cutoff 5/12/00; Pretrial memorandum due
10/20/00; Pretrial conference set for 1:00 p.m. on 10/26/00
Case placed on STANDARD Case Mgmt. Track (cc: all counsel,
court, Ct Rptr) (jk)
ORDER by Judge Yvette Kane - IT IS ORDERED THAT Dft shall
file a br addressing the issue of this Court's jurisdiction
over the clms asserted in the above-captioned actions by
12/8/99 and pltf shall file a br in response by 12/23/99.
(cc: all counsel court) (sc) [Entry date 11/26/99]
ORDER - by Judge Yvette Kane: AND NOW, this 13th day of
Dec., 1999, in light of defense counsel's representation to
the Crt. that the parties have agreed to the remand of
these cases to the Crt. of Common Pleas of Cumberland Cty.,
and it appearing to the Crt. that J:emand is warranted under
28 USC 1452 & 1334, IT IS ORDERED THAT: 1. These cases are
remanded to the Crt. of Common Pleas of Cumberland Cty. 2.
A certified copy of this order shall be mailed by the Clerk
of this Crt. to the Clerk of the Crt. of Common Pleas of
Cumberland Cty. 3. The CMC in CV-99-1617 sched. for
12/17/99 at 1 p.m. is canceled. termed ddl. remanding
case to state court (cc: all counsel, Security, Crt. of
Comon Pleas of Cumberland Ctv. & court) (am)
[Entry dat'2 12/15/99] .
REMARK - Case file placed in the Hbg. closed file room. (am)
REMl'..EK - Cert. eopy of order of Cl't. dtd. 12/14/99 alon~'l
with cert. copy of docket sheet sent to Crt. of Co~non
Pleas of Cuml.'(:rJand Cty. (am)
Docket as of December 15, J.9:.~(~ lO:~,3 am
Page .1
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IN THE UNITED STATES DISTRICT COURT
~'OR THE MIDDLE DISTRICT OF PENNSYLVANIA
SCOTT'S PINE TREE INN, INC.
Plaintiff,
v.
CIVIL ACTION NO.
ERIE INSURANCE EXCHANGE
q'i? '7,~S GuJTTwr>l
Defendant.
JURY TRIAL DEMANDED
NOTICE OF REMOVAL
TO THE CLERK OF UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
U,S. COURTHOUSE
228 WALNUT STREET
HARRISBURG, PA 17108
Defendant, Erie Insurance Exchange (hereinafter
"Erie"), by and through its counsel, Cozen & O'Connor, files this
Notice of Removal of the above-captioned case from the Court of
Common Pleas of Cumberland County, Commonwealth of Pennsylvania,
in whieh it is now pending, to the United States District Court
for the Middle District of Pennsylvania, and in support thereof,
avers as follows:
1. This action was commenced by vlrit of Summons filed
in the Court of Common Pleas of Cumberland County, Commonwealth
of Pennsylvania, on December 31, 1998, and is docketed as Civil
Action - Law, No. 98-7325 (hereinafter the "State Action"). The
State Action was served upon Erie on January 5, 1999.
(A true
and correct copy of Plaintiff's \1rit of Summons is attached as
Exhibit "1")
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2. The plaintiff, Scott's Pine Tree Inn, Inc., is a
citizen of the Commonwealth of Pennsylvania.
3. The defendant, Erie Insurance Exchange, is a
citizen of the Commonwealth of Pennsylvania.
4. The State Action involves claims by plaintiff,
Scott's Pine Tree Inn, Inc., for insurance proceeds it claims it
is owed under a policy of insurance issued by defendant Erie
Insurance Exchange to Scott's pine Tree Inn, Inc. for a property
located at 1710 Centerville Road, Newville, Pennsylvania.
5. The State Action is a proceeding related to the
Chapter 11 bankruptcy proceeding initiated by Scott's Pine Tree
Inn, Inc., on October 10, 1997, in the United States Bankruptcy
Court for the Middle District of Pennsylvania pursuant to 11
U.S.C. ~ 1121, docketed as case number 97-04317.
6. The claims at issue in the State Action are
necessarily related to the bankruptcy proceeding instituted in
federal court by Scott's Pine Tree Inn, Inc. by virtue of the
fact that the insurance proceeds under the Erie Insurance
Exchange policy of insurance is the sole asset of the bankruptcy
estate and the plaintiff seeks recovery of said proceeds.
7. This court has original jurisdiction over the
State Action. a non-core bankruptcy proceeding, because the suit
is related to the underlying bankruptcy case. See 28 U.S.C.
!i~J33'l and 144l.
8. Judicial economy, fairness, and convenience to the
p~rtjen wil1 be nerved by removing the State Action to the
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federal district Court where the contract action can be litigated
before a jury and the United States District Court for the Middle
District of Pennsylvania.
9. Erie has simul taneously filed a Notice of Removal
with this Court seeking to remove a state action initiated in the
Court of Common Pleas of Cumberland County by Harlan and Jean
Kahler, husband and wife, by the filing of a Complaint against
Erie Insurance Group, Erie Insurance Exehange, Weitzel Insurance
Agency, Donald S. Weitzel, Sr. and Donald S. Weitzel, Jr.
10. The state action filed by Harlan and Jean Kahler
is also a related proceeding to the Scott's Pine Tree Inn, Inc.
bankruptcy action, because the Erie Insurance Exchange policy
proceeds are the sole asset of the bankruptcy estate, and both
Harlan and Jean Kahler and Scott's Pine Tree Inn, Inc. have made
claim to said proceeds.
11. Defendants request a trial by jury in federal
district court.
12. This notice is timely filed, pursuant to 28 U.S.C.
~1446(b), within the thirty (30) days of the receipt by
defendants of a copy of the summons filed in the State Action.
13. A copy of this Notice of Removal is being filed
with the Prothonotary of the Court of Common Pleas of Cumberland
County and is being served upon Plaintiff pursuant to 28 U.S.C. ~
1446 (d) .
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WHEREFORE, Notice is given that the State Action is
removed from the Court of Common Pleas of cumberland County,
Commonwealth of Pennsylvania, to the United States District Court
for the Middle District of Pennsylvania.
Respectfully submitted,
COZEN & 0' CONNOR
BY:
~h
MICHAEL F. HENRY
Attorney I.D. No. 17 9
MADELINE CAPRIOLI
Attorney I.D. No. 69733
1900 Market Street
The Atrium ,5th Floor
Philadelphia, PA 19103
(215) 665-2072
Attorneys for Defendants,
Erie Insurance Group,
Erie Insurance Exchange,
Weitzel Insurance Agency,
Donald S. Weitzel and
Donald S. Weitzel, Jr.
Dated: January 20, 1999
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,
C E R T I FIe A T ION
I, Madeline Caprioli, attorney for defendants, Erie
Insurance Exch~nge hereby certify that on the 20th day of
January, 1999, I did cause a true and correet copy of Defendants'
Notice of Removal to be mailed via Overnight Mail to Counsel
addressed as follows:
Richard Wix, Esquire
Wix, Wenger & Widner
4705 Duke Street
Harrisburg, PA 17109-3099
CAPRIOLl
Dated: January 20, 1999
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SCOTT'S PINE TREE INN, INC.
Plaintiff,
CIVIL ACTION NO.
v.
:
ERIE INSURANCE EXCHANGE
Defendant.
JURY TRIAL DEMANDED
:
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
PLEASE TAKE NOTE that a Notice of Removal of the above
captioned action has been filed in the United States District
Court for the Middle District of Pennsylvania, pursuant to 28
V.S.c. sections 1441 and 1334 containing a statement of facts
which entitles this matter to be removed.
A copy of said Notice of Removal is attached hereto,
together with a copy of all processes, pleadings and orders
served upon it.
BY:
COZEN &
HENRY, ESQUIRE
PRIOLI, ESQUIRE
Attorneys' for Defendants,
Erie Insurance Group,
Erie Insurance Exchange,
Weitzel Insurance Agency,
Donald S. Weitzel and
Donald S. Weitzel, Jr.
Dated: January 20 1999
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_:__ COZEN & O' CONNOIl i
PROf:' 2
~ 002 _
I N THE COURT Of COfotlON PlEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 9 ~ -'/31.5 J/S(1;j
Civil Action - (X) Law
( ) E:qul.ty
Erie Insurance Exchange
4901 Louise Drive
P.O. Box 2013
Mechanicsburg, PA 17055-0710
Scott's Pine Tree Inn,
Incorporated
1706 Centervillo Road
Newville, PA 17241
versus
Plalntif1(s) &
Address(es)
Defendant( s) &
Addressees)
~PE FOR WRIT OF SUl'KlNS
TO THE PROTHONOTARY OF SAID COURT:
Please issue writ of summons in the above-captioned action.
~ Writ of Summons shall be issued and forwarded to ( )Attorney (X)Sheriff
Richard H. Wix. Esauire
Wix, Wenqer & Weidner
4705 Duke Street
Harrisburq, PA 1710g-3099
_ (7l?1 652-8455
Nemes/Address/ Te/ephon No.
of Atter'ner
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Signature 'o't Attorney
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Supreme Court /0 No. 07274
Date: December 31. ] 998
\lRlr Of S~NS
TO THE ABOVE NAJ~EO DEfENDANTeS):
Oate:J..,?'.31-~
by
ITHOII. - IS
) Check here it reverse is issued for additional intormalion
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IN THE COURT OF COMMON
C.1J P:1- "AN 1 , 2011'\ ,"
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PLEAS OF ~~O'CJNTY
SCOTT'S PINE TREE INN, INC.
Plaintiff,
CIV. ACTION NO. 98-7325
v.
ERIE INSURANCE EXCHANGE
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DEFENDANT'S PRELIMINARY OBJECTIONS TO DISMISS
THE ACTION FILED BY SCOTT'S PINE TREE INN, INC.
PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE l028(A) (4)
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Defendant,
Erie
Exchange
(hereinafter
Insurance
"Erie"), by and through its attorneys, Cozen and O'Connor, moves
this Court to grant its Preliminary Objections pursuant to
Pennsylvania Rule of Civil Procedure 1028 (a) (4), dismissing the
above-captioned case, Civil Action Number 98-7325, filed by
Scott's pine Tree Inn, Inc. (hereinafter "the Inn").
In support
of these Preliminary Objections, Erie avers as follows:
STATEMENT OF FACTS
1.
On June 13,
1996,
defendant Erie Insurance
Exchange insured the Inn's interest as a corporation in its
restaurant building and business under an Ultraflex Package
Policy.
Gregory and Linda Scott, as individuals, were never
insureds under the Erie policy.
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2. An incendiary fire occurred on August 11, 1997 at
the Inn located at 1710 Centerville Road, Newville, Pennsylvania.
3. The corporation has made claim to the insurance
proceeds under the Erie policy for the August 11, 1997 fire.
Because the Scotts are not insureds under the Erie policy, they
have not, and cannot, make any claim for insurance proceeds for
coverage afforded to the corporate entity.
4. At all relevant times, the Scotts owned and
operated the Inn, and throughout the investigation of this fire
loss claim and the filing of these cases, they have acted as the
shareholders and officers of the corporation.
5. The public authorities and Erie I s privately
retained cause and origin investigators concluded that the August
11, 1997 fire was incendiary.
6. On April 2, 1998, after conducting an extensive
investigation, Erie denied the claim submitted by the Inn based
upon the intentional acts and increase in hazard exclusions
contained in the policy of insurance, as well as the fraud and
concealment and cooperation provisions contained therein.
7. The Inn initiated three separate cases in this
Court by Writ of Summons against Erie Insurance Group and/or Erie
Insurance Exchange, all relating to the August 11, 1997 fire
loss.
2
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8. The Inn filed its first suit in this Court on
January 21, 1998, against Erie Insurance Group.
(A true and
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correct copy of the Writ of Summons filed on January 21, 1998 is
attached hereto as Exhibit "A"). While Erie Insurance Group is a
trade name only and anon-entity, Erie Insurance Exchange and
Erie Insurance Group are, for purposes of the Inn's claims, the
same entity.
9. This Writ of Summons was filed only five months
after the August 11, 1997 fire and before Erie had completed its
extensive investigation of the fire or had even denied liability
for any claims stemming from the fire.
10. A judgment of non pros was entered against the Inn
in the first suit on June 18, 1998, for the Inn's failure to file
a timely Complaint. The procedural history relating to entry of
a judgment of non pros against the Inn is as follows.
11. Erie filed a Praecipe for a Rule to File a
Complaint on April 14, 1998, and the Prothonotary of Cumberland
County issued the Rule to File Complaint against the Inn on the
same date.
(A true and correct copy of the Rule to File a
Complaint issued on 4/14/98 is attached hereto as Exhibit "B").
12. Erie served a copy of the Rule to File a Complaint
on the Inn, via its legal counsel Richard Wix, Esquire, on April
16, 1998.
(A true and correct copy of the Affidavit of Servi.ce
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of the Rule to File a Complaint and related correspondence dated
4/16/98 is attached hereto as Exhibit "C").
13. Between cTanuary 21 and l~ay 1, 1998, and prior to
the entry of judgment of non pros, Erie's legal counsel contacted
Richard Wix. Esquire, counsel for the Inn, on numerous occasions
to inquire whether his client intended to file a Complaint in the
first action. Wix repeatedly advised Erie's counsel that a
Complaint would be filed only if and when his client got around
to doing so.
14. since the Inn did not file its Complaint within
the 20 days required after the Rule to a File Complaint had been
served, and after numerous conversations with its counsel, it
became clear to Erie that the Inn did not intend to file a timely
Complaint, despite twice taking insurance agent Donald Weitzel's
deposition, pursuant to the Summons.
15. On May 27, 1998, Erie thereafter forwarded a
Notice of Intent to Seek Judgment of non pros to the Inn pursuant
to Pennsylvania Rule of Civil Procedure 237.1. (A true and
correct copy of Michael F. Ilenry's letter to Richard Wix dated
May 27, 1998, enclosing Notice of Intent, is attached hereto as
Exhibit "D").
16. The Prothonotary of Cumberland County entered a
judgment of non pros against the Inn on June 18, 1998, which was
thereafter docketed on August 11, 1998. (A true and correct copy
.1
,-
of the judgment of non pros dated 8/11/98 is attached hereto as
Exhibit "E"). 1
1 7. The Prothonotary of Cumberland County mailed
notice of the entry of the jUdgment of non pros against the Inn
to Richard Wix, Esquire, on August 11, 1998.
18. On August 25, 1998, Erie also mailed notice of the
entry of judgment of non pros against the Inn along with the
docket entries reflecting the entry of the judgment of non pros,
to Richard Wix, Esquire.
(A true and correct copy of Michael F.
Henry's letter to Richard Wix dated 8/25/98, and the judgment
certificate and docket entries reflecting entry of judgment of
non pros, are attached hereto as Exhibit "F").
19. Despite the fact that the Inn filed its premature
initial Writ of Summons against Erie on January 21, 1998, and
that Erie thereafter on May 27, 1998, gave notice that it sought
a jUdgment of non pros, the Inn took no action whatsoever to
pursue its alleged claims against Erie.
20. Without petitioning the COU1-t to remove the
judgment of non pros entered in the first suit, and in total
disregard of the court's entry of the judgment of non pros, the
Inn then filed a second lawsuit against Erie Insurance Exchange
in this Court by \.;rit of Summons filed on December 31, 1998. (A
As will be hereinafter stated, the judgment of non pros
against the Inn bars any further action against Erie Insurance
Group or Erie Insurance Exchange.
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true and correct copy of the Writ of Summons filed on 12/31/98 is
attached hereto as Exhibit "G")."
21.
In
complete
disregard
for
the
pleading
requirements of the Pennsylvania Rules of Civil Procedure, the
Inn filed what purports to be a Complainc against Erie Insurance
Exchange in the first action, docketed as Civil Action Number 98-
7325, on October 1, 1999.
(A true and correct eopy of the
Complaint filed on 10/1/99 is attached hereto as Exhibit "H") . 3
22. The judgment of non pros) entered against the Inn
on June 18, 1998, in its initial action filed on January 21,
1998, against Erie Insurance Group) dismissed
same claims that the Inn pursues against Erie
the Writ for the
Insurance Exchange
in this present case.
PRELIMINARY OBJECTIONS
23. Preliminary objections must be sustained if
Plaintiffs are unable to prove the facts necessary to establish
the legal sufficiency of their claims for relief. Where these
2 In total disregard of the judgment of non pros entered on the
first suit, the Inn, together with Gregory and Linda Scott,
recently filed a third Writ of Summons on August 11, 1999 in this
Court against Erie Insurance Exchange, Erie Insurance Group,
Weitzel Insurance Agency, Donald G. Weitzel, Sr. and Donald G.
Weitzel, Jr. regarding the August 11, 1997 fire loss. The
defendants have filed Preliminary Objections contemporaneously
herewith to dismiss the Complaint the :nn filed in that third
action.
, On January 21, 1999, Erie removed the second action filed by
the Inn to the United States District Court of the Middle
District of Pennsylvania. The Inn filed its Complaint in the
federal district court. This Cilse was remanded back to this
Court on December 15, 1999.
6
27. Under Pennsylvania law, the Inn had to move this
Honorable Court to open the prior judgment of non pros entered
against it on June 18, 1998 prior to the filing of this second
lawsui t against Erie Insurance Exchange. See Pa. R. Ci v. Pro.
237.3, 3051; Schuylkill Navy v. Joan Switt Lanqbord, 728 A.2d 964
(Pa. Super. 1999); Gates v. Servicemaster Commercial Services,
631 A.2d 677 (Pa. Super. 1993), petition for allowance of appeal
denied, 641 A.2d 310 (1994); j::'ountv of Erie v. Peerless Heater
Co., 660 A.2d 238 (Pa. Commwlth. Ct. 1995).
28. Specifically, the Inn must satisfy a tri-partite
test required to remove the judgment of non pros entered i.n the
first action prior to filing any other action against Erie
Insurance Exchange. In order to maintain any action against
Erie, the Inn must file a Petition with this Honorable Court,
alleging facts to show that: (1) a petition to open the prior
judgment of non pros was timely filed; (2) there was a reasonable
explanation or legitimate excuse for the inactivity or delay; and
(3) there was a meritorious cause of action. See Pa. R.Civ. Pro.
3051; Schuylkill Navv v. Joan Switt Lanqbord, 728 A.2d 964 (Pa.
Super. 1999); Gat.es v. Servicem3ster Commercial Services, 631
A.2d 677 (Pa. Super. 1993), petit.ion for allowance of appeal
denied, 641 A.2d 310 (1994); County of Erie v. Peerless Heater
Co., 660 A.2d 238 (Pa. Commwlth. Ct. 1995).
8
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29. Ignoring the requirements of both Pennsylvania
Rules of Civil Pl'ocedure 237.3 or 3051, the Inn filed a second
Writ of Summons on December 31, 1998, and a Complaint thereafter
on October 1, 1999, against Erie Insurance Exchange for the same
claims as those at issue in the first Writ of Summons filed on
January 21, 1998, l'egarding the August 11, 1997 incendiary fire.
30. Since the Inn has failed to move for the removal
of the judgment of non pros, and has not even at tempted to
satisfy ehe tri-partite test see forth above, it cannot maintain
this action against Erie.
PRELIMINARY OBJECTIONS UNDER RULE 1028{A) (4)
AS TO ALL CLAIMS DUE TO THE FAILURE
TO FILE SUIT WITHIN THE SUIT LIMITATIONS
31. The Erie Ultraflex Package Policy under which the
Inn is insured provides:
16. SUIT AGAINST US
We may not be sued unless there is full
compliance with all the terms of this
policy. Suit muse be brought within two
years (Maryland and North Carolina - 3
years) after the loss occurs.
32. Since the Inn did not obtain relief from any court
to open or strike the judgment of non pros entered against it on
June IB, 199B, the second loJrit of Summons filed on December 31,
1998 must be dismissed. Thus, this action is null and void and
has no legal effect whatsoever against Erie Insurance Exchange.
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required by Pa. R. Civ. Pro 1028(a), and contains onlv
conclusions of law, and no facts whatsoever, in support of the
Inn's purported claims against Erie. The Complaint contains no
specific averments, attempts to plead causes of action that do
not exist and fails to state any claims with sufficient
specificity to allow Erie to respond, all in violation of Pa. R.
Civ. P. 1019(b), and the specifie requirements of fact pleading
under Pennsylvania law.
38. The Complaint is woefully deficient in its
pleading as to fraudulent and negligent misrepresentation, breach
of the duty of good faith and fair dealing, negligence and bad
faith under 42 Pa. C.S.A. 18371 in that, not only does it fail to
allege the elements of those purported causes of action, but
further fails to allege any facts whatsoever to support any of
those alleged claims against Erie.
39. Under Pennsylvania law, the requirements of a
cause of action for intentional or fraudulent misrepresentation
are: (1) a misrepresentation; (2) a fraudulent utterance of the
misrepresentation; (3) intention by the maker that the recipient
will thereby be induced to act; (4) justifiable reliance by the
recipient on the misrepresentation; and (5) damage to the
recipient as the proximate result. Savitz v. Weinstein, 395 Pa.
173, 149 A.2d 110 (1959); Ba!2h v. Bell Telephone Co.., 411 Pa.
Super. 347, 358-59, 601 A.2d B26, 831 (1992).
11
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40. The elements of a cause of action for negligent
misrepresentation are: (1) misrepresentation of a material fact;
(2) the representor must either know of the misrepresentation,
must make a misrepresentation without knowledge as to its truth
or falsity, or must make representation under circumstances in
which he ought to have known of its falsity; (3) representor must
intend the representation to induce another to justifiably act on
it; and (4) injury must result to a party acting in justifiable
reliance on the misrepresentation. Gibbs v. Ernst, 538 Pa. 193,
647 A.2d 882 (1994).
41. Not only does the Inn fail in its Complaint to
state, at a bare minimum, the basic elements of fraudulent or
negligent misrepresentation, it fails to state any facts at all
to support such claims. Thus, the Inn has entirely failed to
state a claim upon which relief can be granted in its Complaint
for fraudulent or negligent misrepresentation against Erie. Such
bald and unsupported allegations are not sufficient to withstand
these Preliminary Objections under Rule 1028 (a) (4) .
42. The Inn's claim for breach of the duty of good
faith and fair dealing must fail as Pennsylvania law does not
recognize such a common law cause of action. See qenerallv
D'Ambrosio v. Pennsylvania Nat'l Mut. Casualtv Ins. Co., 494 Pa.
501, 431 A.2d 966 (1981); Commercial Union Assurance Co. v.
Pucci, 523 F. Supp. 1310 (W.D. Fa. 1981); Harrison v. Nationwide
12
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Mutual Fire Ins. Co., 580 F. Supp. 133 (E.D. Pa. 1983). Any such
claim is solely the creature of statute. See 42 Pa.C.S. ~ 8371.
43. Thus, the Inn's claim for an alleged breach of
duty of good faith and fair dealing is nothing more than a breach
of contract action against Erie based upon good faith and fair
dealing, and therefore, must be dismissed. Garvey v. National
Granae Mutual Ins. Co., Civ. A. No. 95-0019, 1995 WL 115416
(E.D.Pa. March 16, 1995).
44. Moreover, even if a claim for breach of the duty
of good faith and fair dealing is viable under Pennsylvania law,
which Erie denies, not only does the Inn fail in its Complaint to
state, at a bare minimum, the elements of such a claim, it fails
to state any facts at all to support sllch a cause of action.
Thus, the Inn has entirely failed to state a claim upon which
relief can be granted in its Complaint for breach of the duty of
good faith and fair dealing. Such bald and unsupported
allegations are not sufficient to withstand these Preliminary
Objections pursuant to Rule 1028 (a) (4) .
45. To establish a claim for negligence under
Pennsylvania law, the Inn must show that Erie breached a known
duty to it and that said breach caused it harm. See Checchio v.
Frankford Hosp., 717 A.2d 10581 (Pa. Super 1978); Martin v.
Ervis, 711 A.2d 458 (Pa. 1998); Mitze]feJt v. Kamrin, 584 A.2d
888 (Pa. 1990)
13
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46. However, no claim exists under Pennsylvania law
for negligent investigation or negligent denial in the insurance
claim context. Thus, the Inn's Complaint fails to state a claim
upon which relief can be granted for negligence.
47. The Inn's Complaint baldly states only that Erie
was allegedly negligent in its investigation of the fire and in
the denial of the claim. There are no factual allegations,
however, to support any such claims of negligence. In its
Complaint, the Inn does not deny that che fire was incendiary,
does not offer any facts to support that the fire was anything
other than incendiary, especially in response to the conclusions
of the Pennsylvania State Police and Erie's privately retained
cause and origin investigators ruling the fire incendiary, and
states no facts or reasons why Erie's denial of the claim was
erroneous or negligent.
48. Thus, even if a cause of action exists for
negligent investigation or negligent denial, the Inn has entirely
failed to state a claim upon which relief can be granted in its
Complaint for negligence. Such bald and unsupported allegations
are not sufficient to withstand these Preliminary Objections
pursuant to Rule 1028 (a) (4) .
49. The Inn has also entirely failed to state a claim
upon which relief can be granted in its Complaint for bad faith
under 42 Pa. C.S.A. 38371.
14
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50. To establish a claim of bad faith, the Inn must
sufficiently allege facts to show that Erie did not have a
reasonable basis for denying benefits under the policy, and knew
or recklessly disregarded this lack of a reasonable basis in
denying this claim. See Terletskv v. Prudential, 649 A.2d at
688; ~ also, D'Ambrosio v. Pennsvlvania National Mutual
Casualty Ins. Co., 494 Pa. SOl, 431 A.2d 966 (1981); United
States Fire Ins. Co. v. Roval Ins. Co., 759 F.2d 306, 309 (3d
Cir. 1985); American Franklin Life Ins. Co. v. Galati, 776 F.
Supp. 1054, 1064 (E.D. Pa. 1991).
51. Mere negligence or bad judgment on the part of an
insurer is not bad faith. Ter1etskv v. Prudential Property and
Casualty Ins. Co., 437 Pa. Super. 108, 649 A.2d 680
(1994) (citing, Rottmund v. Continental Assurance Co., B13 F.
Supp. 1104, 1108-09 (E.D. Pa. 1992); Coyne v. Allstate Ins. Co.,
771 F. Supp. 673, 677-7B (E.D. Pa. 1991).
52. In its Complaint, the Inn alleges only that Erie
was negligent in its denial of the claim, which is insufficient
to support a olaim for bad faith. See Jerletskv, 649 A.2d 680
(Pa. Super 1994). Not only does the Inn fail in its Complaint to
state, at a bare minimum, the basic elements of a cause of action
for bad faith, it fails to state any facts at all to support such
claim.
] 5
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53. Therefore, the Inn's claim for bad faith under 42
Pa. C.S.A. ~8371 must fail as it has have not pled any conduct
that rises to the level of bad faith as defined under
Pennsylvania law, nor has it even attempted to plead the elements
for a bad faith cause of action.
54. For the reasons set forth herein and Erie's
Memorandum of Law in Support of these Preliminary Objections,
this Honorable Court should dismiss this action filed by the Inn
against Erie Insurance Exchange in its entirety with prejudice,
pursuant to Pennsylvania Rule of Civil Procedure 1028(a) (4)
Respectfully submitted,
BY,
MICHAEL F. HENRY, ESQUIRE
Attorney I.D. No. 17690
r~DELINE CAPRIOLI, ESQUIRE
Attorney I.D. No. 69733
1900 Market Street
The Atrium ,5th Floor
Philadelphia, PA 19103
(215) 665-2050
Attorneys for Defendant,
Erie Insurance Exchange
Dated: January 12, 2000
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I N TIlE COURT OF COt-'.'-10N ('tEl
CUMBERLAND COUNTY, PENNSYLVANIA
No. ~8 19.30 J
Civil Action - ( )~
( ) Equ i ty
SCOTT'S PINE TREE INN, INC.
1710 Centervi11e Road
Newville, PA 17241
ERIE INSURANCE GROUP
4901 Louise Drive
Rossmoyne Business Center
Mechanicsburg, PA 17055-0710
.,
versus
--
TRUE COpy FROM RECORD
In TliSt'uno,'W wherOO!, I here unto :illt my hand
and tho seal o! said C9~rt at Carlisle, Pa.
ThiS1):'.I--, d;J t:(~;:.::..: J;,;~
'f" Prothonotary
Defendant( s) 1\
Address (es )
Plaintiff(s) 1\
Address(es)
~.
PRAECIPE FOR WRIT OF SUMMONS
TO THE PROTHONOTARY OF SAID COUET:
Please issue writ of summons in the above-captioned action.
x Writ of Summons shall be issued and forwarded to ( )Attorney (x}Sheriff
Richard H. Wix, Esquire
Wix, Wenger & Weidner
4705 Duke Street
Harrisburg, PA 17109
(717) 652-8455
Names/Address/ Telephon No.
of Attorney
~gJJ-l-
Signature of Attorney
Supreme Court ID No.
07274
Date: January 20, 1998
WRIT OF SUrt10NS
TO THE ABOVE NAMED DEFENDANT(S):
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PtAINTlfF(S} HAS/HAVE COMMENCED AN
ACTION AGAINST YOU.
---
Prothon tcry
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by \.. j"u (L
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Deputy
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Date:~<1 ,~I
rtltJr
( ) Check here if revene is issued for additional information
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COZEN AND O'CONNOR
BY: MICHAEL F. HENRY, ESQUIRE
IDENTIFICATION NO. 17690
BY: MADELINE CAPRIOLI, ESQUIRE
ID EN'fI FICA 'fION NO. 69733
1900 Ml11'ket Street, 5th Floor
Philadelphia, PA 19103
(215)665-2193
Attorneys for Defendant,
ERIE :NSURANCE GROUP
SCOTT'S PINE TREE INN, INC. :
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
, . '. .'>"I~~-~"::" ',",'. : '_< .;.._,'.'....:..:.~>.<:,.. ..........., :.." ..:.... '. .
Plaintiff
v.
CIVIL ACTION - LAW
NO. 98-301
ERIE INSURANCE GROUP
Defendant
JURY TRIAL DEMANDED
RULE TO FILE
AND NOW, this & day of I' I , 1998, a Rule is hereby granted upon
Plaintiff, Scott's Pine Tree Inn, Inc., to file a Complaint herein against Defendant, Erie
Insurance Group, within 20 days after serviee hereof or suffer the entry of a Judgment of Non
Pros.
~ ,ctv.' .Ari I ;1.ltj10
/D~
P OTHONOTARY
TRUE Copy FROM
In TcstlmOn}'whciOOf I h RECORD
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COZEN AND O'CONNOR
BY: MICHAEL F. HENRY, ESQUIRE
IDENTIFICATION NO. 17690
BY: MADELINE CAPRIOLl, ESQUIRE
IDENTIFICATION NO. 69733
1900 Market Street, 5th Floor
Philadelphia, PA 19103
(215)665-2193
Attorneys for Defendant,
ERIE INSURANCE GROUP
SCOTT'S PINE TREE INN, INC.
Plaintiff
v.
EIUE INSURANCE GROUP
Defendant
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL ACTION - LAW
NO. 98-301
JURY TIDAL DEMANDED
AFFIDA VIT OF SERVICE OF RULE TO FILE COMPLAINT
Madeline Caprioli, Esquire, being duly sworn according to law, deposes and
says that she is counsel for Defendant, Eric Insurance Group, and that service of attached
copy of the Rule to File Complaint was sent to counsel for Plaintiff, Scott's Pine Tree Inn,
Inc., at !lIe office address of Richard H. Wix, Esquire, Wix, Wenger & Weidner, 4075 Duke
Street, Harrisburg, PA 17109 on April 16, 1998 via Federal Express service, charges
prepaid.
COZEN AND O'CONNOR
BY: ^r~r./
MADELlNE~A~IOLl, ESQUIRE
, ".- " ' ~.... " ~ ':" '. . ~.,' .. . , '.' . '.' :. , '.~:. ' '
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ATLANTA. COjll\,
COZEN AND O'CONNOR
A f'1I0"(.r.~'O"""l CONl'OllAIION
NCW Yo,-U<., NV
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WCST CONSHOHOCKCN, PA
WCSTMONT, N.J
MICHAEL F. HENRY
DIACCT DIAL (Zr51 OCl5.Z0!;.O
May 27, 1998
Via Fax Transmission
and U.S. Postal Service
Richard Wix, Esquire
Wix, Wenger & Widner
4705 Duke Street
Harrisburg, PA 17109-3099
RE: Scott's Pine Tree Inn, Inc. v. Erie Insurance Group
(CCP Cumberland County, CIA No. 98-301)
Our File No.: 64898
Dear Mr. Wix:
Enclosed please fmd a Notice of intent to seek a judgment of 11011 pros for
plaintiffs failure to file a Complaint wi!llin the required time. I know you indicated that you
have a draft Complaint in the works and will be filing same shortly. Please caU me and let me
know whether or not you anticipate !llat the Complaint will be filed within the next ten days.
Obviously, I do not want to move for a judgment of 11011 pros if your schedule
makes it impossible to file a Complaint shortly. On the o!ller hand, 1 do not want to wait for
a substantial amount of time, in light of the fact that the Summons was filed in January, and
depositions have been conducted on two occasions of the insured's broker. Please let me know
if !llis is going to present a problem, as soon as possible.
I am also planning to issue subpoenas for various frnancial records that have not
been turned over by !lIe Scotts. lllese are rC'.cords that I requested months ago, some of which
you authorized direclly in letters - for instance, Meridian Bank - although that bank later
requested a letter directly from an insured. Obviously, any records secured pursuant to
subpoena will be copied and provided to you. lllus. I will be forwarding copies of these
subpoenas and rcquesting the rccords without waiting for 20 days to send !lIe subpoenas. Please
let me know if you have any objection to that procedure.
. '., .
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COZEN AND O'CONNOR
BY: MICHAEL F. HENRY, ESQUIRE
IDENTIFICATION NO. 17690
BY: MADELINE CAPRIOLl, ESQUIRE
IDENTIFICATION NO. 69733
1900 Market Street, 5th Floor
Philadelphia, PA 19103
(215)665-2193
AttolTleys for Defendant,
ERIE INSURANCE GROUP
SCOTT'S PINE TREE INN, INC.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
CIVIL ACTION - LAW
NO. 98-301
ERIE INSURANCE GROUP
Defendant
JURY TRIAL DEMANDED
NOTICE OF Fn,ING PRAECIPE FOR JUDGMENT OF NON PROS
TO: RICHARD H. WIX, ESQUIRE
Wix, Wenger & Weidner
4705 Duke Street
Harrisburg, PA 17109
Attorney for Plaintiff
DATE OF NOTICE: 711(j:J. ~. /'19<1
You are in default because you have failed to iile a complaint in this case.
Unless you act wi!llin ten days from !lIe date of !llis notice, a judgment of non pros may be
entered against you wi!llout a hearing and you may lose your right to sue the Defendant, Erie
Insurance Group, and illereby lose propeny or other important rights.
COZEN AND O'CONNOR
t~L!r Il
BY:
CERTIFICATION
I, Michael F. Henry, hereby certify that I caused a true and correct copy of
I-<..
!lle foregoing Notice of Filing Praecipe for Judgment of Non Pros to be served !llis d-7-aay
of May, 1998 by U.S. first-class mail, postage prepaid, and U.S. certified mail, postage
prepaid, upon the following counsel for !lIe plaintiff:
Richard H. Wix, Esquire
WIX, WENGER & WEIDNER
4705 Duke Street
Harrisburg, PA 17109
COZEN AND O'CONNOR
BY: M~~t~: f~
1900 Market Street t/
The Atrium
5!l1 Floor
Philadelphia, PA 19103
(215) 665-2050
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COZRN t. O'CONNOR
............................. 05-27-98 OS,30PM
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215 GS5 2013
REMARKS
DATE ~ TIME FILE TYPE
05-27 05:26PM MEMORY-S
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New VORK, NY
C<<,r.,RlOTTC, Ne
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NCW,r.,RK, NJ
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MICHAEL F". HENRV
n.AI:CT OIA.. (ZISl 66'5.,zoOSO
August 25, 1998
Via Fax Transmission
and U.S. Postal Service, First Class
Richard Wix, Esquire
Wix, Wenger & Widner
4705 Duke Street
Harrisburg, PA 17109-3099
RE: Insured: Scott's Pine Tree Inn, Inc. (Gregory and Linda Scott)
Loss Localion: 1710 Centerville Rd., Newville, PA 17241
Loss Date: 8/10/97
Erie Claim No.: 010170318715
Our File No.: 64898
Dear Mr. Wix:
Allhough the Scott's Pine Tree. Inc. v. Erie Insurance Group case has been nOIl
prosed, I recently received correspondence from George B. Faller, Jr., Esquire, of the Matson,
Deardorff, Williams & Otto firm relating to the claim of the Kahlers under the Erie Insurance
Exchange policy of insurance.
You will recall !llat after my client, the Erie Insurance Exchange (which was !lIe
issuing company of tlle policy of insurance) denied your client's claim, we requesled information
from the Orrstown Bank (!llrough Mr. Frank Kozier) and from the Kahlers' attorney (Mr.
Faller) whether those entities were making a claim under !lIe Erie Insurance Exchange policy
of insurance. Further, I called bo!ll parties in lale Mayor early June again requesting
information as 10 whether or not any claims would be fortllcoming. I did not receive any
response from the bank or !lIe Kalders' attorney. Last week I al!empted to determine whether
any claims would be forthcoming and learned !llat, apparently, en June 22, 1998, Attorney
Faller's colleague, Michael J. Hanfl, Esquire, forwarded a packel of documents to me, which
were never received at this firm.
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August 25, 1993
Page 2
To keep you adviscd in this matter, I am cnclosing a copy of ~ fax reccived
yesterday from Mr. FaBer, as well as a copy of the June 22, 1998 lctter dirccted to mc which
I never received. It is apparent that the Kahlers are now making claim and have executed a
Sworn Statement in Proof of Loss, seeking $398,671.90.
AdditionaIly, please also be advised that the Pennsylvania State Police Fire
Marshal's Office has made a request on my client under Pennsylvania's Arson Reporting
Immunity Statute, which request has been complied with.
I have also recently learned from Wanda Shade, formcrly of the Meridian Bank,
that the business plan submitted to Meridian by the Scotts, when they applied for their pre-
purchase loan was not retained in the bank's files, but was picked-up by Mr. Scott. If you have
been able to discovcr or isolate this business plan/loan request material, which you had
, authorized the bank to forward to us, I would again request a copy of same at your earliest
convcnience.
FinaIly, 1 am cnclosing a copy of the judgmcnt certificatc of non pros, as wcll as
a copy of the dockct cntries in that case in !lIC event you do not have samc. Please notc, for !lle
record, that !lle Erie Insurance Exchange was the insurcr that issued the Scott's Pine Trce Inn,
Inc. policy of insurancc, not the Erie Insurance Group.
If you have any questions, of course, plcase do not hesitate to contact me at any
time.
Waiving none, but in all o!ller respects rescrving to the Eric Insurance Exchange
all of its rights and defenses under and pursuant to thc policy of insurance involved herein, we
remain
Vcry truly yours,
M FH\mmc
Enclosurcs
COZEN AND O'CONNOR
~~fjENR
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.^NCE GROUP
Filed........ :
Time.................. :
Exccution Datc
Sat/Dis/Gntd, .
'Jury TriaL."
Higher Court 1
Hiaher court 2
..*.***********************~*.*.***.***..***~********n*,***********************,
General Index Attorney Info
scorrrr's Pl N
L j \.' j J 1... tl:, \ J I H~ (~ j j )'
['REE INN INC (VS) EIUE INl
1998:00301
Reference No..:
Case Type.....: WRIT OF
Judgment...... :
Judge Assigned:
SUH110NS
.00
1/21/1998
8:14
0/00/0000
0/00/0000
SCOTT'S PINE TREE INN INC
1710 CENTERVILLE ROAD
NEWVILLE PA 17241
ERIE INSURANCE GROUP
4901 LOUISE DRIVE
ROSSMOYNE BUSINESS CENTER
MECt~NICSBURG PA 17055
PLAINTIFF
WIX RICHARD H
DEFENDANT
HENRY MICHAEL S
CAPRIOLI MADELINE
Judgment Index
SCOTT'S PINE TREE INN INC 6/18/1998 JUDGMENT OF NON PROl
***************************************************************.******.*******_.
* Date Entries '
*******************,,************,.********************************************
01/21/98 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED
01/23/98 SHERIFF'S RETURN FILED
Litigant.: ERIE INSURANCE GROUP
SERVED : 1/22/98 WRIT OF SUMM
Costs...,: $28.68 Pd By: WIX WENGER & WEIDNER 01/23/1998
ENTRY OF APPEARANCE FOR DEFENDANT BY MICHAEL F HENRY ESQ AND
MADELINE CAPRIOLI ESO
PRAECIPE FOR RULE TO FILE COMPLAINT BY MICHAEL F HENRY ESO AND
MADELINE CAPRIOLI ESO
RULE TO FILE COMPLAINT BY CURTIS R LONG PROTHONOTARY
AFFIDAVIT OF SERVICE OF RULE TO FILE COMPLAINT
PRAECIPE FOR JUDGMENT OF NON PROS AND NON PROS ENTERED
CURTIS R LONG PROTHONOTARY
ENTERED ON DOCKET 8/11/98 AND NOTICE ~~ILED 8/11/98
07/23/98 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY MADELINE CAPRIOLI ESO
DEFENDANT'S PRAECIPE FOR JUDGMENT OF NON PROS (WITHDRAWN FROM
ARGUMENT \
******************~************************************************************
* Escrow Information
* Fees & Debits Beo Bal Pvmts/Adi End Bal
.*******************************'********~******'******************************
02/04/98
04/14/98
04/14/98
04/20/98
06/18/98
35.00 35.00 .00
,50 .50 .00
5.00 5.00 .00
5.00 5.00 .00
9.00 9.00 .00
------------------------ ------------
54.50 54.50 .00
*******************************************************************************
* End of Case Information
******.**************************..***********.********************************
WRIT OF SUNMONS
TAX ON WRIT
SETTLEMENT
JCP FEE
JDMT
Name: COZEN & O'CONNOR
Send Confirmatlon Report
IO: 215 GG5 2013
Page
I
25 Aug 90 16:35
Job Start Time Usage Phone Number or IO Type
28 8/25 16:28.... 6'26" 041#646981101191717652 Send..,
629011
Pages Mode
Status
12/12 EC 96 Completed..,....,................................
Total
6'26"
Pages Sent: 12
Pages Printed: 0
IHflOlI.OWlNO 1Ft f~OPY IS fROM:
COZEN AND O'CONNOR
The Atrium
1900 M.rt.t Str..t
I'hilalle/phla" PA t8'O~
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5. On or about August 10, 1997, a fire consumed the pine Tree
Inn, resulting in a total loss to the building and business
equipment, and Plaintiff's loss was in excess of the policy limits
issued by the Defendant.
6, At the time of the fire, Harlan J. Kahler and Jean H.
Kahler were lienholders under the terms of the policy of insurance
issued by the Defendant.
7. Plaintiff notified Defendant of the loss and has submitted
a proof of loss to Defendant, and has performed all conditions
precedent which are required of it under the policy.
8. Defendant
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has breached its insurance contract and has denied any liability,
not only to the Plaintiff, but also to the mortgage holders.
9. As a result of Defendant's breach of its contract agreement
and its failure to pay either Plaintiff or the Kaylers for the
loss, Plaintiff was forced to file for protection under the
bankruptcy laws of the United states of America.
10. Defendant, acting through its agents, servants, or
employees, made fraudulent and negligent representations to the
Plaintiff resulting in damages to the Plaintiff.
11. At all times relevant hereto, Defendant b~eached its duty
of fair dealing and acting in good faith.
12, Defendant was negligent in its investigation of the fire
and in its denial of all claims arising out of the fire.
2
12. Defendant was negligent in its investigation of the fire
and in its denial of all claims arising out of the fire.
13. Defendant's actions constituted a bad faith violation
of 42 Pa. C.S.A. 58371 entitling Plaintiff to punitive damages
and attorneys' fees.
Wherefore, Plaintiff demands judgment against the Defendant
in an amount in excess of $50,000.00, together with interest,
punitive damages, and attorneys' fees.
WIX, WENGER & WEIDNER
B ~\ -K )-Lr-
y ,
Richard H. Wix, Esquire
I.D. #07274
Attorneys for Plaintiff
4705 Duke street
Harrisburg, PA 17109-3099
(717) 652-8455
3
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CERTIFICATE OF SERVICE
AND NOW, this 1st day of October 1999, I, Richard H. Wix,
Esquire, of the firm of Wix, Wenger & Weidner, attorneys for
Plaintiff, hereby certify that I served the within Complaint this
date by depositing a copy of same in the United states mail,
postage prepaid, in Harrisburg, Pennsylvania, addressed as follows:
Madeline Caprioli, Esquire
COZEN AND O'CONNOR
The Atrium
1900 Market street
Philadelphia, PA 19103
WIX, WENGER & WEIDNER
ByCCC--~-g lP ~/
Richard H. Wix, 'I.D. #07274
Attorneys for Defendant
4705 Duke street
Harrisburg, PA 17109-3099
(717) 652-8455
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
CIV. ACTION NO. 98-7325
SCOTT'S PINE TREE INN, INC.
Plaintiff,
v.
ERIE INSURANCE EXCHANGE
Defendant.
JURY TRIAL DEMANDED
DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF ITS
PRELIMINARY OBJECTIONS TO DISMISS THE ACTION FILED
BY SCOTT'S PINE TREE INN, INC. PURSUANT TO
PENNSYLVANIA RULE OF CIVIL PROCEDURE 1028(A) (4)
I. INTRODUCTION
This civil action arises from an incendiary fire that
occurred on August 11, 1997 at Scott's Pine Tree Inn, Inc.
located at 1710 Centerville Road, Newville, Pennsylvania. In its
Complaint filed on October 1, 1999, Scott's Pine Tree Inn, Inc.
("the Inn") appears to seek insurance proceeds from Defendant
Erie Insurance Exchange ("Erie") for the fire to the insured
property. Erie incorporates by reference herein the detailed
factual statement set forth in its Preliminary Objections as
though fully set forth in length.
Erie moves this Court to grant its Preliminary Objections
pursuant to Pennsylvania Rule of civil Procedure 1028(a) (4),
dismissing the above-captioned case, Civil Action Number 98-7325,
filed by Scott's Pine Tlcee Inn, InC'. (hereinafter "the Inn").
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For the reasons set forth herein, the Complaint filed by the Inn
against Erie must be dismissed in its entirety pursuant to
Pennsylvania Rule of Civil Procedure 1028(a) (4) for legal
insufficiency of the pleading. The Inn has failed to state any
claims against Erie upon which relief can be granted.
:II. ARGUMENT
A. Standard of Review.
Preliminary objections test the legal sufficiency of a
challenged proceeding. Composition Roofers Local 30/30 B v.
Katz, 398 Pa. Super. 564, 581 A.2d 607 (1990). Preliminary
objections must be sustained if the plaintiff is unable to prove
the facts necessary to establish the legal sufficiency of its
claim for relief or that jurisdiction exists over the defendant.
Where these facts are not pled, a complaint must be dismissed.
Firinq v. Kephart, 466 Pa. 560, 563-564, 353 A.2d 833, 835
(1976); ~rouse v. Hauck, 330 Pa. Super. 58, 478 A.2d 1348 (1984);
Gallucci v. Phil1ips r., .THcabs, Inc.. 418 Pa. Super. 306, 614 A.2d
284 (1992), appeal denied, 533 Pa. 660, 625 A.2d 1193 (1993).
Under this standard, the court is not required to accept as
true a pleader's conclusions of la\-I. Santiaqo v. Pennsylvania
Nat'l Mut. Casualty Ins.Co., 418 Pa. Super. 178, 185, 613 A.2d
1235, 1238-39 (1992). See also Bianchini v. N.K.D.S. Assoc. ,
Ltd., 420 Pa. Super. 294, 296, 616 A.2d 700, 701 (1992), appeal
denied, 534 Pa. 634, 626 A.2d 1154 (1993).
. " . '" -: . '. ..' .' . .',' . :", .' I. " .". -,' . ' . ~ , :. . - . I ' , ~ _ . L" . ':'. " ' I I :'. . .:. ,"
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under Rule 1028 (a) (4) of the Pennsylvania Rules of civil
Procedure, preliminary objections may be filed to any pleading
based upon the legal insufficiency of a pleading. Preliminary
objections in the nature of a demurrer should be sustained, and
the complaint dismissed, where it appears with certainty that the
law permits no recovery under the allegations pleaded. Winthrop
& Co.. Inc. v. Milqrom, 447 Pa. Super. 140, 668 A.2d 557 (1995).
In its Complaint, the Inn vaguely references claims for
breach of contract, fraudulent and negligent misrepresentation,
breach of the duty of good faith and fair dealing, negligence and
bad faith under 42 Pa. C.S.A. ~8371. The Complaint filed by the
Inn, however, must be dismissed in its entirety pursuant to
Pennsylvania Rule of Civil Procedure 1028(a) (4) for failure to
state any claim against Erie upon which relief can be granted.
B. The Judgment of Non Pros Entered Against Scott's Pine
Tree Inn, Inc. Bars Any Later Suits Against Erie.
Apparently, the Inn believes that it can disregard the
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Pennsylvania Rules of Civil Procedure as to the opening of
judgments of non pros, and simply file Writ after Writ of Summons
against the same defendants for the same claims, even though a
prior judgment of non pros exists. Under Pennsylvania law,
however, the Inn must first move a Court to vacate or open the
judgment of non pros entered on June 18, 1998, in order to file
its second lawsuit or any other suit against Erie, and satisfy
the requirements of Rule 3051 for the opening of judgments. See
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Pa. R.Civ. Pro. 273.3 and 3051; Gates v. Servicemaster Comm.
Serv., 631 A.2d 677 (pa. Super. 1993), petitian far allowance of
appeal denied, 641 A.2d 310 (1994).
The Inn has not filed a Petition in any caurt to vacate the
judgment of non pros or attempted to satisfy the requirements
necessary to open the said judgment and is now barred from doing
so. Further, it has nOl: filed a Complaint stating a meritorious
claim against Erie within the two-year suit limitation period and
without a court order opening the judgment prior thereto, it is
now barred from doing so.
In Gates, supra, 631 A.2d at 678, the Court of Common pleas
of Dauphin County entered a judgment of nan pras against the
plaintiff. The Superior Court affirmed the trial court's
decision to grant the defendant's motion for judgment of nan pras
and thus, denied the plaintiff's petition to open the judgment.
The plaintiff in Gates filed a Complaint. against the
defendant [or breach of an oral and written cont.ract of
employment and wrongful discharge. The defendant moved for
judgment of nan pras due to the plaintiff's lack of prosecution
of the suit. Plaintiff argued that the statute af limitations had
not run on her cause of action and that the defendant had not
suffered prejudice as a result of the delay. However, the trial
court granted the defendant's motion, indicating that the
,
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plaintiff could IIGt iqnol'C itn obligation to move forward with
the case. 1iL.. at G'I9.
In upholding the trial court's decision not to open the
judgment: of nOli proD, the s:;ates Court held that, prior to filing
a second suit on the GalliC claim, a plaintiff must petition the
court and natinfy the three pronged test to open the judgment of
non pros. The plaintiff must show: (1) the petition to open was
timely filed; (2) there was reasonable explanation for the delay;
and (3) a med,todollG calise of action exists. Id. at 682
(citi,ng, l.J.\lCr.i......-!.." 0,)' v, Detroit Fire and Marine Ins. Co., 167
1I.2d 425 (Pa. Super. 1933)), See also Bon Homme Richard Rest..
.lDr. v. Thr"...' '<iv"n1 H,lnk 'llld Trust Co., 444 A.2d 1272, 1273 (Pa.
Super. 19!12) (whether party requests that case be reinstated or
requests to ntnrt name case ullder new term number is not
material; what in important is whether he had a cogent reason for
inactivity) .
The n"\:(:[l Court held that if a non pros is entered against a
party, even if the statute of limitations had not run, the
defaulting party may not file a second action. Rather, "the
ntatute of limitations comes into play only in the sense that, if
it has not run on the particular cause of action, the plaintiff
may sef.k a n"inntaternent of the suit with the payment of costs
alld V;i\i"fi.lrt';ol1 nf rhe tri-nClrtite te',;t for openinq iudqment of
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non pros." Gates, 631 A.2d at 682.' See also County of Erie v.
Peerless Heater Co., 660 A.2d 238 (Pa. Commwlth. Ct. 1995) (fact
that statute of limitations had not run was not relevant as to
proper entry of non pros . . . proper inquiry is whether
[plaintiff] "delayed matters such that it is incompatible with
the orderly and prompt dispatch of judicial business").
The most recent decision that controls these Preliminary
Objections is Schuylkill Navy v. Switt, 728 A.2d 964 (Pa. Super.
1999), which adopts the holding in Gates. The Superior Court
held that after a judgment of non pros, a subsequent action on
the same claims may not be filed without permission of the court
pursuant to Pennsylvania Rule of Civil Procedure 3051. This rule
requires a party seeking relief from a judgment of non pros to
file a petition with the court and satisfy the tripartite test
set forth in Gates.
As in the present case, the Schuylkill Navy plaintiff filed
two prior complaints (not just Writs) for the same cause of
action; the court entered a judgment of non pros on both of these
The Gate2 Court cited: Mazer v. Serqeant Electric Co.,
180 A.2d 63 (Pa. 1962); Bon Homme Richard Restaurants. Inc. v.
Three Rivers Bank and Trust Co., 444 A.2d 1272, 1273 (Pa. Super.
1982); Smith v. Southeastern Pennsylvania Transportation
Authoritv, 443 A.2d 829 (Pa. Super. 1982); Commonwealth v.
Bailev, 419 A.2d 1351 (Pa. Super. 1980); Corcoran v. Fiorentino,
419 A.2d 759 (Pa. Super. 19801; Public Welfare v. Flowers, 407
A.2d 896 (Pa. Commwlth. 1979); Thomaso!) v. Cortese, 398 A.2d 1079
(Pa. Commwlth. 1979); Bl'iqham v, Eq]in's of Philadelphia. Inc.,
176 A.2d 404 (Pa. 1%2).
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actions. The plaintiff never moved the court to remove either
judgment of non pros. The defendant filed successful preliminary
objections to the third suit, asserting that the plaintiff's
clllims were barred by the judgments of non pros.
The Superior Court in Schuylkill Navv held that the
plaintiffs third action "should not have proceeded before the
trial court unless or until . [it] filed a petition to strike
und/or open the prior judgment of non pros, and the trial court
granted the motion." Id. at 967 (citing, Gates v. Servicemaster
Commprcial Service, 631 A.2d 677 (Pa. Super. 1993); Petrone v.
tlh,i.1::.l;-Jind. Inc., 664 A.2d 172 (Pa. Super. 1995); Bucci v. Detroit
Ein" " MClrine Ins. Co., 167 A. 425 (Pa. Super. 1933)).
Specifically, the court found that, in light of the judgment of
nail pros, the plaintiff had to seek permission to proceed with
its third action through a petition pursuant to Pa.R.Civ.Pro.
3051.
In light of this decisional authority, this Honorable Court
should dismiss the action filed by Scott's pine Tree Inn, Inc.
against Erie Insurance Exchange. The existence of the judgment
of non pros entered on June 18, 1998 precludes the Inn from
filing either a Complaint or any additional Writs of Summons
against any Erie defendant.
Rather, the Inn was required to petition this Court to
vacate the judgment of non pros under Pa.R.Civ.Pro. 273.3 and
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3051 and had to show that the petition to open the judgment of
non pros was timely filed, that there was a reasonable
explanation or legitimate excuse for the inactivity or delay, and
that there existed a meritorious cause of action. See Pa. R.civ.
Pro. 3051; Schuvlkill Navy, 788 A.2d 964 (Pa. Super 1999);
Gates, 631 A.2d 677 (Pa. Super. 1993); Countv of Erie, 660 A.2d
238 (Pa. Commwlth. Ct. 1995). The Inn has never even at,tempted
to make such a showing. Thus, the judgment of non pros is
outcome determinative and precludes the Inn from filing the
above-captioned action.
Therefore, the Inn cannot state any claims against Erie upon
which relief can be granted. As a result, the Inn's Complaint in
this case against Erie Insurance Exchange must dismissed in its
entirety pursuant to Pennsylvania Rule of civil Procedure
1028 (a) (4) .
C. The Inn's Second Suit Against Erie Is Are Barred By The
policy's Two Year Suit Limitation Provision.
Moreover, this action against Erie is now barred by the
policy's suit limitation provision. The Erie policy insuring the
Inn provides:
16. SUIT AGAINST US
We may not be sued unless there is full
compliance with all the terms of this policy.
Suit must be brought within two years
(Maryland and North Carolina .. 3 years) after
the loss occurs.
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Because the Inn never obtained a court order to vacate or
open the judgment of non pros entered on June 18, 1998, the
second Writ of Summons filed on December 31, 1998, and the
Complaint filed on October 1, 1999, must be dismissed. This
action is null and void and has no legal effect.
Pennsylvania courts strictly enforce the suit limitation
provision in insurance policies. Hospital Support Services. Ltd.
v. Kemper Group. Inc., 889 F.2d 1311 (3d Cir. 1989); Schreiber v.
Pennsvlvania Lumberman's Mut. Ins. Co.. 444 A.2d 647 (Pa. 1982);
General State Authoritv. v. planet Ins. Co., 346 A.2d 265 (Pa.
1975). Since the Inn has not filed a court sanctioned lawsuit
against Erie within two years from the August 11, 1997 loss, it
has breached the policy's suit limitation provision. This
violation of the suit limitation provision bars recovery for the
Inn under the Erie policy.
D. The Inn's Complaint Fails to State a Claim Against Erie
Upon Which Relief Can be Granted for Fraudulent or
Negligent Misrepresentation.
The Inn has entirely failed to state a claim upon which
relief can be granted in its Complaint for fraudulent or
negligent misrepresentation against Erie.
The requirements of a cause of action for intentional or
fraudulent misrepresentation are: (1) a misrepresentation; (2) a
fraudulent utterance of the misreprescntation; (3) intcntion by
the maker th"t the recipient wi 11 thereby be induced to act; (4)
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justifiable reliance by the recipient on the misrepresentation;
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and (5) damage to the recipient as the proximate result. Savitz
v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); Bash v. Bell
Telephone Co., 411 Pa. Super. 347, 358-59, 601 A.2d 826, 831
(1992) .
The elements of a cause of action for negligent
misrepresentation are: (1) misrepresentation of a material fact;
(2) the representor must either know of the misrepresentation,
must make a misrepresentation without knowledge as to its truth
or falsity, or must make representation under circumstances in
which he ought to have known of its falsity; (3) representor must
intend the representation to induce another to justifiably act on
it; and (4) injury must result to a party acting in justifiable
reliance on the misrepresentation. Gibbs v. Ernst, 538 Pa. 193,
647 A.2d 882 (1994).
In support of the Inn's purported claim for fraudulent and
negligent misrepresentation, the Complaint simply states:
10. Defendant, acting through its agents,
servants, or employees, made fraudulent and
negligent misrepresentation to the Plaintiff
resulting in damages to the Plaintiff.
(See Exhibit H to Erie's Preliminary Objections).
Giving the Inn every benefit of the doubt, however, this
single allegation cannot possibly support such claims. Such an
allegation is patently deficient as a matter of law because it
does not allege any facts at all, let alone with the specificity
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required by Pennsylvania Rule of Civil Procedure 1019(b) relating
to fraud, any facts whatsoever as to what the alleged
misrepresentations Erie supposedly made were or to whom Erie made
them. "In order to plead fraud with sufficient particularity,
the pleadings must adequately explain the nature of the claim to
the opposing party so as to permit the preparation of a defense,
and the pleadings must be sufficient to convince the court that
the averments are not merely subterfuge." Martin v, Lancaster
Batterv Co., Inc., 530 Pa. 11, 606 A.2d 444, 446 (1992). The
party alleging fraud must plead facts which, if proven, would
actually constitute fraud. Com. bv Zimmerman v. Bell Telephone
Co. of pennsvlvania, 121 Pa. Commwlth. 642, 551 A.2d 602 (1988).
See also In re Estate of Schofield, 505 Pa. 95, 477 A.2d 473
(1984); Bata v. Central-Penn National Bank, 423 Pa. 373, 224 A.2d
174 (1966), cert. denied, 386 U.S, 1007 (1967). Here, no such
averments appear in the Complaint.
Moreover, the Inn does not plead even the basic elements
required to establish a claim for fraudulent or negligent
misrepresentation under Pennsylvania law, nor does it allege any
factual support that Erie knew or should have known of the truth
or falsity of che purported misrepresentation, that Erie intended
the representation to induce the Inn to justifiably act on it, or
what damage, if any, the Inn allegedly suffered as a result of
",
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the nonexistent representations made by Erie.
(See Exhibit H to
Erie's Preliminary Objections).
Simply put, the Inn's one line conclusion of law as to some
unspecified or unidentified representations supposedly made by
someone, somehow connected to Erie, cannot possibly support a
claim for either fraudulent or negligent misrepresentation.
Thus, this alleged claim must be dismissed for failure to state a
claim upon which relief can be granted under Pa. R. civ. Pro.
1028(a) (4).
E. The Inn's Complaint Fails to State a Claim Against Erie
Upon Which Relief Can be Granted for the Breach of the
Duty of Good Faith and Fair Dealing.
Furthermore, the Inn's purported claim for the breach of the
duty of good faith and fair dealing must fail. Under
Pennsylvania law, an insured has no common law claim for "bad
faith" refusal to pay a first party claim under an insurance
policy. D'Ambrosio v. Pennsylvania Nat'l Mut, Casualty Ins. Co.,
494 Pa. 501, 431 A.2d 966 (1981); Commercial Union Assur. Co. v.
Pucci, 523 F.Supp. 1310 (W.D. Pa. 1981); Harrison v. Nationwide
Mut. Fire Ins. Co., 580 F.Supp. 133 (E.D. Pa. 1983). Any such
claim is solely the creature of statute. See 42 Pa.C.S. 3 8371.
In D'l'.mbrosio v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 494
Pa. 501, 431 A.2d 966 (1981), the Pennsylvania Supreme Court held
that the Unfair Insurance Practices Act, 40 Pa. C.B.A. 31171.4,
1171.5, sufficiently deterred bad faith conduct by insurers and
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declined to create a common law cause of action for breach of the
duty of good faith and fair dealing. The Inn's purported claim
for the breach of the duty of good faith and fair dealing is
nothing more than a breach of contract action against Erie based
upon good faith and fair dealing, and therefore, must be
dismissed. Garvev v. National Granoe Mutual Ins. Co., Civ. A.
No. 95-0019, 1995 WL 115416 (E.D, Pa. 1995).
Moreover, as with its alleged claim for misrepresentation,
the Inn provides no factual basis whatsoever in its Complaint for
any claim for a breach of the duty of good faith and fair
dealing. Instead, the Complaint only states:
11. At all relevant times, Defendant
breached its duty of fair dealing and acting
in good faith.
(See Exhibit H to Erie's Preliminary Objections).
There are no allegations as to exactly how Erie breached any
duties at all to the Inn, let alone any purported breach of the
duty of good faith and fair dealing. Such patently deficient
allegations are insufficient as a matter of law. Thus, because
the Inn cannot establish any alleged breach of the duty of good
faith and fair dealing, such claim must be dismissed under
Pennsylvania Rule of civil Procedure 102'3 (a) (4) .
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F.
No Cause of Action Exists Under Pennsylvania Law For
Negligent Investigation or Negligent Denial of a Claim
And The Inn's Complaint Even Fails to State a Claim
Against Erie for Negligence Generally.
"
There is no cause of action for negligent investigation or
negligent denial in an insurance claim context. Further, to
establish a claim for negligence generally under Pennsylvania
law, the Inn must show that Erie breached a known duty to
Plaintiff and that said breach caused Plaintiff harm. See
Checchio v. Frankford Hosp., 717 A.2d 10581 (Pa. Super 1978);
Martin v. Ervis, 711 A.2d 458 (Pa. 1998); Mitzelfelt v. Kamrin,
584 A.2d 888 (Pa. 1990). The Inn's negligence claim must fail
because no such cause of action exists and it cannot establish,
and has not averred, how Erie breached a known duty, nor can it
show that it suffered damages as a result of Eire's actions.
Rather, true to form, the Complaint states:
12. Defendant was negligenc in its
investigation of the fire and in its denial
of all claims arising out of the fire.
(See Exhibit H to Erie's Preliminary Objections) .
Moreover, the Complaint does not allege any facts whatsoever
to establish, giving it the benefit of all doubt, that, in fact,
Erie was negligent in its investigation of the fire or the denial
of the Inn's claim. The Inn does not allege that the fire was
not incendiary, does not dispute the conclusions of the
Pennsylvania State Police and Erie's privately retained cause and
origin investigators that the fire was incendiary, nor does it
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The Inn's conclusory use of the word "negligence" is not
"
sufficient to state a claim for bad faith. Terletskv, 649 A.2d
680 (1994). In fact, the facts of this case overwhelmingly
support that Erie had a reasonable basis to decline to pay the
Inn's claim based upon the incendiary nature of the fire as
determined by the public authorities and Erie's cause and origin
investigators, the involvement of the principals of the Inn in
setting or procu:dng the fire, the failure of the Inn's
principals to cooperate in the loss investigation and their
violation of the concealment and fraud provisions contained in
the policy of insurance. None of these defenses have ever been
contested, disputed or responded to by the Inn in any fashion.
Under the most liberal of standards, the Inn has not stated
a claim for bad faith under 42 Pa. C.S.A. 18371 upon which relief
can be granted. Therefore, the Inn's purported bad faith claim
must be dismissed under Pennsylvania Rule of civil Procedure
1028 (a) (4) .
III. CONCLUSION
In sum, the Inn's Complaint is bereft of any facts at all.
Rather, it contains only legal conclusions. Thus, for the
reasons set forth herein and i.n Erie's Preliminary Objections,
the action filed by Scott's pine Tree Inn, Inc. against Erie
,
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Insurance Exchange should be dismissed pursuant to Pennsylvania
dismiss this action in its entirety with prejudice.
Rule of Civil Procedure 1028 (a) (4). Erie requests that this Court
Respectfully submitted,
BY:
MICHAEL F. Y, ESQUIRE
Attorney I.D. No. 17690
MADELINE CAPRIOLI, ESQUIRE
Attorney I.D. No. 69733
Attorneys for Defendant,
Erie Insurance Exchange
Dated: January 12, 2000
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C E R T I F I CAT ION
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I, Madeline Caprioli, attorney for defendant, Erie Insurance
Exchange, hereby certify that on the 12th day of January, 2000, I
did cause a true and correct copy of Erie's Preliminary
"
Objections and the Memorandum of Law in support thereof to be
mailed via Regular U.S. Mail to Counsel addressed as follows:
Richard Wix, Esquire
Wix, Wenger & Widner
4705 Duke Street
Harrisburg, PA 17109-3099
COZEN AND O'CONN
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MADELINE C~lRIOLI, ESQUIRE
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PHlLA1\116457S\1 064898.000
01/11/
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
SCOTT'S PINE TREE INN, INC.
Plaintiff,
CIV. ACTION NO. 98-7325
v.
ERIE INSURANCE EXCHANGE
Defendant.
C'<
CO
JURY TRIAL DEMANDED..,,;
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DEFENDANT'S PRELIMINARY OBJECTIONS TO DISMISS ~' (.,) '~:;
THE ACTION FILED BY SCOTT'S PINE TREE INN, INC.~::,:- ". ,: ':;
PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE l028.(Ar (4~:; : t'
:"-1 "-...) ~:-,
Defendant, Erie Insurance Exchange (herelna't:ter'
"Erie"), by and through its attorneys, Cozen and O'Connor, moves
this Court to grant its Preliminary Objections pursuant to
Pennsylvania Rule of Civil FlOC'cdu1^<2 1U:,6 (a) (ol), dismissing the
above-captioned case, Civil Action Number 98-7325, filed by
Scott's pine Tree Inn, Inc. (hereinafter "the Inn").
In support
of these preliminary Objections, 21'18 avers as follows:
STATEMENT OF FACT~
1.
On L1Ulle
J :",
1 (; ,) (, ,
Cl,'f\::lldant
Erie
Insurance
Exchange insured the Jnn' :~~ -int.\.:':'l-'_<~t .1::; '::i corpol-ation in its
restaurant buildin~1 ;J.nd Lu::~il)(":~::; UndJ:l" an Ullraflex Package
Policy.
GLegol"Y zn:d LiLd~J ~;CCJtt
af:; ind.ividuals, were never
in~3url:~d~; und.::.'r t.11t:. El :i.t:' },;:-'1: \_'~\',
."
2. An incendial'y tire oCCUIT(,'d on August 11, 1997 at
the Inn located at 1710 Centerville Road, Newville, Pennsylvania.
3. The corpol-ation has made claim to the insurance
proceeds under the Erie policy [or t]k AUCjust 11, 1997 fire.
Because the Scotts are not insureds under the Erie policy, they
have not, and cannot, make any claim for insurance proceeds for
coverage afforded to the corporate entity.
1
,
4.
At all relevant times,
the Scotts owned and
operated the Inn, and throughout the investigation of this fire
loss claim and the filing of these cases, they have acted as the
shareholders and officers of the corporation.
5.
The
public authorities
and Erie's
privately
retained cause and origin investigators concluded that the August
11, 1997 fire was incendiary.
6. On Apl-il 2, 1998, after conducting an extensive
investigation, Erie denied t.he claim submitt.ed by the Inn based
upon the intent.ional act.s and increase in hazard exclusions
contained in the policy of insurance, as well as the fraud and
concealment and cooperation provisions cont.ained therein.
7. The Inn in} tiated three f3eparate cases in this
Court by h'Lit of Summons Mjain:3t Erie In:;urance Group and/or Erie
Insurance Exchanqe, ,;11 l"clat j,n'1 to tbe !\uqust 11, 1997 fire
loss.
)
8. The Inn filed its fi.t'st suit in this Court on
January 21, 1998, against Erie Insurance Group.
(A true and
correct copy of the \~rit of Summons filed on .January 21, 1998 is
attached hereto as Exhibit "A"), While Erie Insurance Group is a
trade name only and a non-entity, Erie Insurance Exchange and
El-ie Insurance Group are, for purposes of the Inn's claims, the
same entity.
9. This Writ of Summons was filed only five months
after the August 11, 1997 fire and before Erie had completed its
extensive investigation of the fire or had even denied liability
for any claims stemming from the fire.
10. A judgment of non pros was entered against the Inn
in the first suit on June 18, 1998, fOl' the Inn's failure to file
a timely Complaint.
The procedural history relating to entry of
a judgment of non pros against the Inn is as follows.
11. Erie filed a Praecipe for a EllIe to File a
Complaint on April 14, 1998, and the Pl'othonotary of Cumberland
County issued the Rule to File Complaint against the Inn on the
same date.
(II true and correct copy of th.? Eule to File a
Complaint issued on '1/11/98 iE' attached hereto a'3 Exhibit "B").
12. Erie served a copy of the j,ule to File a Complaint
on the Inn, via its legal counsel Eichcnd Wix, Esquire, on April
16,1998.
(1\ t;-ue ;il1d C01Tc:ct copy uf t_hl.~ ':.,,[fidavit of Service
I
,
, '> .. ," '. ", ',',' . ',', 1- '. ,.' ".
. .." ': '
\
of the Rule to File a Complaint and related corre'3pondence dated
4/16/98 is attached hereto as Exhibit "C"),
13. Betwel~n January ;~~i cHld fvld)' 1, "1 qqg I and prior to
the entry of judgment of non pros, Erie's legal counsel contacted
Richard Wix, Esquire, counsel ror the Inn, on numerous occasions
to inquire whether his client inu"nded to rile a Complaint in the
first action.
Wix repeatedly advised Erie's counsel that a
" , ' , ," . , '.' " . . . - ":~"". ,:' , , l' '" .
Complaint would be filed only if dnd \"hell his client got around
to doing so.
14. Since the Inn did not file its Complaint within
the 20 days required arter the Rule to a File Complaint had been
served, and after numerous conversations with its counsel, it
becalW2 clear to Erie that the Inll did not intend to rile a timely
Complaint, despite twice lal:ing insUl:ano.. agent Donald \,eitzel' s
deposition, pursuant to the. Summons.
15. On May 27, 1')98, Erie thel'eafter forwarded a
Notice of Intent to Se,,,), ,Judgment or non pros to t,h,~ Inn pursuant
to pennsy1. vania Rule or Ci v j 1. ProcedLl1"~ 23'7.1..
(A true and
COlTect copy ot Mich;le 1. F. )!'11lj":, 1. ,..t t ,'J' lo Ri chard \,ix dated
May 7..7, 1998, enclosinS] NOlie..' u1. .Illt>:JJt:, i:J a.ttacbed hereto as
Exhibit "D").
16.
'1'111:-:
PJ."c)t.])oncJ'i d }'Y
.'
'..'..
Cuml "'l'land
County
entered a
jUdgmc.nt of non pros ,i(],-d n:;t t L(~ 1 ;;!j (-)1 ,llll1e 18 I ~ :.198, which was
thered1ti:-]" d()ckl':tt..:d 1,")] /.\tl111;:~! 1 J,
j"!; .
iA trll(~ :iJ1d correct copy
"
of the judgment of non pro:: dated fJ/ll/"13 1:3 attached hereto as
Exhibit "E,,).J
1 7 . The
ProtllCJllot"ll"J' uf
C'lIl1d.l"rland County mailed
notice of the entry of the judgment of non pros against the Inn
to Richard l~ix, Esquire, on i'lu'lufJt 11, 1"')8.
18. On August 25, 19913, Ed"" also mailed notice of the
\
entry of judgment of non pl'OS a'lainst the Inn along with the
docket entries reflecting the entry of the judgment of non pros,
to Richard Wix, Esquire.
(A true and correct copy of Michael F.
Henry's letter to Richard \~ix dated 8/7.5/98, and the judgment
certificate and docket entries reflecting e!ltry of judgment of
non pros, are attached hereto as Exhibit "F")
19. Despite the fact that the Inn filed its premature
initial \~rit of Summons a9ainst Erie on ,January 21, 1998, and
that Erie thereafter on May 27, 1998, gave notice that it sought
a judgment of non pros, the Inn took no action whatsoever to
pursue its alleged claims against Erie.
20. Without petitioning the Court to remove the
J
judgment of non pros entered III the f j rst suit, and in total
disregard of the court's entry of the judgment of non pros, the
Inn then filed a second lawsuit aqainst Erie Insurance Exchange
in this Court by Writ of "'~',J\",nK'ns i:i led u" J)('cember 31, 1998. (A
,#
As will be h(.~r!~in,~>.1:t,~_-:r ::;d~-,'d" :!;,_~ !\:\.:,;;~>,,'!lL ()f 1')(',n pros
against the Inn barf':; ,In)! tU1.tL':'l ,t(.t-j( oJ .l'l,jjll::;t. El-i(' Illt.;urance
Group or El.ie Jn~:;uranc(:, E;,:cl1,i);cV:
~ \' ", . ." . ,'- ',." . " , + '. . "" ~ ..' , - '.' . . .
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true and corl-ect. copy of 11:'0 lVJ'.it of SUIIlIIIOIW filed on 12/31/98 is
attached hereto a~3 E:.:l1ibit 1t(~II)
:~ 1 .
In
('otnpl~::'LI_:
dir,regard
for
I,he
pleading
. . \ ,: " . . . " -' ,", .., . , . ".. . . , ' : ' ~.- ~ " . '. .. , r ' . "
requirements of the Pennsylvania I\ules uf Civil Procedure, the
Inn filed what purports to be a Complaint against Erie Insurance
Exchange in the first action, docketed as civil Action Number 98-
7325, on October 1, 1999,
(A t:rue and correct copy of the
Complaint filed on 10/1/99 is attached ileret:o as Exhibit "H") ]
22. The judgment of non Pl-OS ent:ered against the Inn
on June 18, 1998, in it:s initial action filed on January 21,
1998, against Erie Insurance Group dismissed the Writ for the
same claims that the Inn pursues against Erie Insurance Exchange
in this present case.
PRELIMINARY OBJECTIONS
23. Preliminary objections must be sustained if
Plaintiffs are unable to prove the facts necessary to establish
the legal sufficiency of their claims for relief. Where these
In total disl-egard of the judgment of llon pros entered on the
first suit, the Inn, together with Gregory and Linda Scott,
recently filed a third \vl-i t of Summons on August 11, 1999 in this
Court against Erie Inf:3UrallCe Exchdl1gt::, El-ie Insurance Group,
Weitzel Insurance Agency, Donald G. Weitzel, Sr. and Donald G.
Weitzel, Jr. regarding the August ]1, ]997 fire loss. The
defendants have filed Preliminary Objections contemporaneously
herewil:h to dismiss the Complaint the Inll filed in that third
action.
On .January 21, 1999, Erie removed L!l'"~ ,;econd action filed by
the Inn tot he United .st a t.e:' Di :;1 l'i, ct (\;lat of t.he 1'1iddle
District of P.:.:>nn::;y1vanlr'J. Tb,-' l11n fjj, (j it:~~ Cc)mp]ciint in the
f(~deJ:al dist.l"ict. caUl L. Thi.:~ C,i;": \','d:~ l' '~:l,ll1d\:'d b,](,'k to this
COul~t all Decelnber 15/ l~~~~.
facts are not plc~d, d complaint 1ll1l:Jt lx' d,i:.3missed.
Fil:inq v.
1
Kcmhart , 166 Pa, 560, <j63-561, 353 A,;,d (333, (335 (1976); Brouse
v. Hallek (
'no
P'::-l,
SU/.i(.::l' .
r;"J
~~,
I'.,,)
. 'v
l\,2d 1.3,']8
(J.9B4) ;
:;allucci v.
Phillips & Jacobs, ]nc" 118 Pa. Super. '<06, 614 A.2d 284 (1992),
appeal dpnied, 533 Pa. 660, 625 A.2d 1193 (1993).
24. The Illn' s vague" Complaint ...,gainst Erie purports to
state claims for breach of contract, fraudulent or negligent
misrepresentation, breach of duty of good faith and fair dealing,
negligent investigation and denial of the claim and statutory bad
faith under 42 Pa. C.S.A, 18371.
PRELIMINARY OBJECTIONS UNDER RULE l028(A) (4)
AS TO ALL CLAIMS DUE TO THE EXISTENCE OF THE
PRIOR ENTRY OF JUDGMENT OF NON PROS
25. The prior entry of the judgment of non pros
against the Inn on June 18, 1998 bars this action, and therefore,
this case must be dismissed under P,"nllsylvania Rule of civil
Procedure 1028 (a) (4) .
Because all further claims are barred
againsl Er.i.e, ll1e Inn cannot: sr:(1te Clny racLs to :..~upport any
claims against Erie.
26. The Inn never souqht to "pen the judgment of non
pros under l\ulc: 237,3 of the Pl~nllf3ylva.nia l\llles of civil
Pl'ocedul'e by fil1n9 " Complaint within Len days a[tel' the entry
of tJl'~ judqment of 11(",n prc:~:, llC1. UllU(:'} Fu1\~ -~OSl by ;?;3tisfying
th\'., t 1'1 .- F',ire i tt''' t l~~r-;t ! I (1tl~, l-' d t- c:' 1 '_'!l1()\",' ,illY _'j udqll1(.nt of non pros.
, .,". ~.. '.", ' , ,';':" ~ :', ,':' '.,,: .', l ~,~, "" ,,' : "'''' '. . _. "
A\
....
...."
'\
27. Under Pennsylvdni,CI law, I il.. ]nn had to move this
Honorable Court to open tile" )J1'ior 'jlld']m"llt of non pros ente~-ed
against it on June 18, 19~)8 pri.(ll' to Lll'_: fj j in~J r:'f this second
lawsui t against Erie Insurance Exchal1']e,
8,",,, lOa. R.. Ci v . Pro.
, -' '. ; '. I ... ,: . . ~ "',,' . . '.'~" . j . .' '. , ' " '. ., ' . \
237.3, 3051; SchuYlkill Navy v. ,Joan Swine Lanqbord, 728 A.2d 964
(Pa. Super. 1999) Gates v, 8ervicemasr,'r Commercial Services,
631 A.2d 677 (Pa. Super. 1993), petition for allowance of appeal
denied, 641 A.2d 310 (1991); COll:1ty of t:rie v. Peerless Heater
Co-,-, 660 A.2d 238 (Pa. Commwlth. Ct. 199',).
28. SpeCifically, the Inn must satisfy a tri-partite
test required to remove the judgment of non pros entered in the
first action prior to filing any other action against Erie
Insurance Exchange. In order to ma i ntain any action against
Erie, the Inn must file a Petit.ion ...."ith this Honorable Court,
alleging facts to show that; (1) a pet i t ion to open the prior
judgment of non pros was timely filed; (:2) there was a reasonable
explanation or legitimate excuse for the inactivity or delay; and
(3) there was a meritorious cause of action. See Pa. R..Civ. Pro.
3051; Schuylkill Navv v, ,Jndn Swi t'l.' kmctl'onJ, 'US 1,. 2d 964 (Pa.
Super. 1999); Gatt:::'s v. S('rv.i,~p;lL.~~~t~('r (\'ll~~lllt:.rC'ja] Servicest 631
A.2d 677 (Pa. Super. 1993)
denied, 641 A.2d 310 (1,!'Joj!
peti tion J .0]' dllolvance of appeal
r'0l111tV oj Fl-il."" v. p,~pr]ess Heater
Co., GGO A.2d. 238 (Pa. C0ll1111vJlth. .:"'t. 1{j~,r
requil'ed by Pa. R. Civ. Pro 1.0;~8 (;ll, dlld contains only
conclusions of law, dnd no facts \"llatsoCVtT, in support of the
Inn I S purported cJ.u ill1f., ag;:-J i 11.'31- E'" i"
'!'!k COirlp1dllll contains no
I . . . , ,~. .' .:.., j j . , ,! _ . :...,.: ' :" : ,'"" . , ",", ' , . . " " J ,
specific averments, attempts to plead causes of action that do
not exist and fails to state any claims with sufficient
specificity to allow Erie to respond, all in violation of Pa. R.
Civ. P. 1019Ib), and the specific requirements of fact pleading
under Pennsylvania law,
38. The Complaint is wO(o'fully deficient in its
pleading as to fraudulent and negligent misrepresentation, breach
of the duty of good faith and fair dealing, negligence and bad
faith under 42 Pa. C.S.A. S8371 in that, not only does it fail to
allege the elements of those purported causes of action, but
further fails to allege any facts whatsoever to support any of
those alleged claims against Erie,
39. Under Pennsylvania law, tJle requirements of a
cause of action for intent j oDal 01:' !l-3udulent misrepresentation
are: (1) a misrepresentati.on; (2) a fl~audlllent utterance of the
misrepresentation; (3) intention by the maker that the recipient
will then:>by be induced to .1Ct:; (,j) jW3t; fiable reliance by the
recipient on t.he misrepn:>s'~,nt:dtiol1; and i'.) damage to the
recipient as the proximate rCAulr.
S~vitz v. Wei!lRtein, 395 Pa.
173, 1,19 A.2d 110 (1"':''1);
l:",-i.'_~jl v, P,-,,]] '}".']PDhonf" Co., -ill Pa.
Super. :3.,7/ 35H~ (:,S~, t_,U~ i\.:'d :";.:1.;,
{ 1 ,'. q :.~) .
-,
Mutual Fire Ins. Co., 580 [0, Supp, 133 It,:,)). Pa, L983). Any such
cla.im is solely the creature 01: :3tatut>~.
,',;"': ']2 Pa.C.S. 1,) 8371.
-13. Thus, the 111111;:; cl:d.m fell" III (--iJ,l{~SV~d breach of
)
duty or good faith and fail' dealing ,i::; nUlhinSI more than a breach
of contract action against Erie based upon good raith and fair
dealing, and therefore, must be dismissed. Garvev v. National
44. Moreover, even if a claim for breach or the duty
,
Granoe Mutual Ins. Co., Civ, A. No, 95-0019, 1995 WL 115416
(E.D.Pa. March 16, 1995)
.)
of good faith and fair dealing is viable under pennsylvania law,
which Erie denies, not only does the Inn fail in its Complaint to
state, at a bare minimum, the elements of such a claim, it fails
to state any facts ac all to support such a cause of action.
Thus, the Inn has entirely tailed to state a claim upon which
relief can be granted in its Complaint for breach or the duty of
good faith and fair dealing. Such bald and unsupported
allegations are not sufficient to withstand these Preliminary
.1
Objections pursuant to Ruh, 1028 (a) (4).
45. To establish a cLlim ror lleCjligence under
Pennsylvania 121\1, the Inn rnu::;t show that Erie breached a known
)
duty to i. t and tllat sa id bl-(~ac'b caused it harm. See Checchio v.
Frankford Hosn, , 717 A.2d }U',IJ] (Fa, Sup'?r 1'J78); Martin v.
Ervis, 711 A.2d .158 (Pa. ](.ln6); ~!'jt-7.(>]h:']1" v. Kaml"in, 584 A.2d
.J
888 (Pa. J ~..j ::. 0 )
~. .~. -;, - . ",'" ,- ~ ." ~ . ~ ~' '.,' "...". . ' " . . . .
"""'"
~
'lG. Howeve]', no cLlim existl., tinder Pennsylvania law
for negligent investigation 01' negligent denial in the insurance
claim context. Thus, the Inn' '3 CUlllplaint LuIs to state a claim
upon which relief can be gl'ant.ed for neqliqence.
47. The Inn's Complaint baldly states only that Erie
was allegedly negligent in its investigation of the fire and in
the denial of the claim.
There are no factual allegations,
however, to support any such claims of negligence.
In its
Complaint, the Inn does not deny that the fire was incendiary,
does not offer any facts to SUpP01't that the fire was anything
other than incendiary, especially in response to the conclusions
of the Pennsylvania State Police and Erie's privately retained
cause and origin investigators ruling the fire incendiary, and
states no facts or reasons why E1'ie' s deni al of the claim was
erroneous or negligent.
48. Thus, even if a cause of action exists for
negligent investigation or negligent denial, the Inn has entirely
failed to state a claim upon which relief can be granted in its
Complaint for negligence.
Such bald and unsupported allegations
are not suff icient to wi thstand these Pr" li mina1'y Obj ections
pursuant to Rule 1028 (a) (4) .
'19. The Il1n has ah'o entire]y i~,iled to state a claim
;
I.
I'
I
.'
!l
upon which relief can be grant,-", il; its Cc:np]aint for bad faith
under ~2 Pa. C.S.A. ~83'71.
I'
:1
- .
J.'f
., ~. '. : ,J , ~ , ' .' " ."", . ..,,".'", . . , .
.'
50, To establish i1 claim of bad faith, the Inn must
sufficiently allege facts to "how that: Erie did not have a
reaSOllable basis for deJlyi.na l'.?nefitc tllldc:l.' tIle policy, and knew
or recklessly disregarded this lack of i1 reasonable basis in
denying this claim.
See Terletskv v. Prudent ial, 649 A. 2d at
688; ~ also, D'Ambrosio v, Pennsylvania National Mutual
Casualty Ins, Co., 494 Pa. 501, 431 A.2d 966 (1981); United
States Fire Ins. Co. v, Roval Ins. Co., 759 F.2d 306, 309 Od
Cir. 1985); American Franklin Life Ins. Co. v. Galati, 776 F.
)
Supp. 1054, 1064 (E.D. Pa. 1991).
51. Mere negligence or bad judgment on the part of an
insurer is not bad faith. Terletskv v. Prudential Prooertv and
Casualty Ins. Co" 437 Pa, Super. 108, 6,19 A.2d 680
(1994) (citing, j<ottmund v. Conti:l,ental l\,';surance co., 813 F.
Supp. 1104, 1108-09 (E.D. Pa. 1992); Covn,o v. Allstate Ins. Co.,
771 F. Supp. 673, 677-78 (E.D, Pa. 1991).
52. In its Complaint, tb~~ Itl~: a 1.1029e5 only that:: Erie
was negligent in its denial of the claim, which is insufficient
to support a claim for bad I:aith. See I'''l'Jets,ky, 649 A.2d 680
(Pa. Super 1991). Not only does the Inn tail in its Complaint to
state, at a bare millimU1TI, the basic elelnellts of a cause of action
1:01' bad faith, it faiL, to "tate any fact" at all to support such
, '
C.J..alTn.
i ::.~
; .: 'l~ -I'. -,' " ,,' ", . "c. ,') "".'~ .-:'-'~.'~ ~>." ',":, :>," ".... .,: . "',
53. Therefore, the Inn's claill1 for bad faith under 42
'...
Pa, C.S.A. S8371 must fail as it has have not pled any conduct
that rises to tIle level of bad f~itll ~3 d,~fi!1ed tlIldcr
.,
Pennsylvania law, nor has it even attempted to plead the elements
for a bad faith cause of action.
54. For the reasons set forth herein and Erie's
'I
Memorandum of Law in Support of these Preliminary Objections,
this Honorable Court should dismiss this action filed by the Inn
against Erie Insurance Exchange in its entirety with prejudice,
pursuant to Pennsylvania Rule of civil Pl'ocedure 1028 (a) (4).
Respectfully submitted,
COZEN & O'CONNOR t\
,\ I\ ,/~.I
I' I 'I U .\ i A'( ! '_. I
BY: ""---"iLUtW/~/:f
MICHAEL F. HENRY', ESQUIRE
Attorney I.D. No. 17690
MADELINE CAPRIOLI, ESQUIRE
Attorney I.D. No. 69733
1900 Market Street
The Atrium . 5th Floor
Pllilctuelphid, Pi\ 19103
(215) 665-20:>0
AttOD1CYS for Defendant,
Erie IJ1;jUrance Exchange
Dated: January 12, 2000
,
1i'
. _ l " " , . -.': " , :' ' . .' .' .~' ('. '.. . \ _:" " " . . ' , , .' .
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COZEN AND O'CONNOR
BY: MICHAEL F. HENRY, ESQUIRE
IDENTIFICATION NO. 17690
BY: MADELINE CAPRlOLI. ESQUIRE
IDENTIFICATION NO. 69733
1900 Market Street, 5!l1 Floor
Philadelphia, PA 19103
(215)665-2193
Attorneys for Defendant,
ERIE INSURANCE GROUP
SCOlTS PINE TREE INN, INC.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
CIVIL ACTION - LAW
NO. 98-301
ERIE INSURANCE GROUP
Defendant
JURY TIDAL DEMANDED
AFFIDA VIT OF SERVICE OF RULE TO FILE COMPLAINT
Madeline Caprioli, Esquire, being duly sworn according to law, deposes and
says that she is counsel for Defendant, Erie Insurance Group, and that service of attached
copy of the Rule to File Complaint was sent to counsel for Plaintiff. Scott's Pine Tree Inn,
Ine., at the office addrcss of Richard H. Wix, Esquire, Wix, Wenger & Weidner, 4075 Duke
Street, Harrisburg, PA 17109 on April 16, 1998 via Federal Express service, charges
prepaid.
COZEN AND O'CONNOR
BY:
ytltC~~{//
MADELINE CAPRIOLl, ESQUIRE
.. +........,...,
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OOMENIC J. MARANO
LEGAL ASSISTANT
OHH:C' o,..~ (;o,!>) (jG5-.....3
April 16, 1998
CC~LP1f
Prothonotary
Court of Common Pleas
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013-3387
RE: Scott's Pine Tree Inn, Inc. v.
Erie Insurance Group
Civil Action - Law No. 98-301
Our File No. 64898
Dear Prothonotary:
Please find enclosed an original and three copies of
Affidavit of Service of Rule to File Complaint on behalf of
Defendant, Erie Insurance Group, in the above captioned matter.
Please forward time-stamp copies to my attention in the self-
addressed stamped envelope. If you have any questions, please
contact me at (215)665-4143. Thank you for your assistance.
Very truly yours,
~EN AND O'CONNOR
. LJ~ C;. 01.-/ ~
DOMENIC J. MARANO, JR.,
LEGAL ASSISTANT TO
I~DELINE CAPRIOLI, ESQUIRE
ce: Richard IJ. \1ix, Esguin, (vJ/enclosures)
. ._'."'~~~~'...:L.;."
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I. M ichacl F. Hcnry, hereby ccrtify that I caused a true and correct copy of
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thc foregoing Noticl' of Filing Praecipe for Judgmcnt of Non Pros to bl~ scrved this ;}7-uay
of May, 1998 by \),S, first-class mail, postage prepaid, and U.S, ccrtified mail, postage
prepaid, upon !lIC following counsel for !lIe plaintiff:
Richard H. Wix, Esquirc
WlX, WENGER & WEIDNER
4705 Duke Street
Harrisburg, PA 17109
COZEN AND O'CONNOR
BY: M~~t~: ~1E
1900 Market Street ty<
The Atrium
51h Floor
Philadelphia, PA 19103
(215) 665-2050
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MICHAeL r, HENRY
0"" Cl Ollll (;"~l ljG!;-.~l)~()
Augusl 25, 1998
Via Fax Transmission
and U.S. Postal Service, First Class
Richard Wix, Esquire
Wix, Wenger & Widner
4705 Duke Street
Harrisburg, PA 17109-3099
RE: Insured: Scoll's Pine Tree Inn, Inc. (Gregory and Linda SCOll)
Loss Localion: 1710 Centerville Rd" Newville, P A 17241
Loss Dale: 811 0/97
Erie Claim No.: 010170318715
Our File No.: 64898
Dear Mr. Wix:
Although the Scoll's Pine Tree. Inc, v. Eric Insurance Group case has been non
prosed, I recently received correspondence from George B. Faller, 1r., Esquire, of the Matson,
Deardorff, WiIlianls & OUo firm relating to the claim of Ihe Kah/ers under lhc Eric Insurancc
Exchange policy of insurance.
You will recall !llal after my clienl, Ihe Erie Insurance Exchange (Which was tJle
issuing company of Ille policy of insurance) denied your client's claim, we requesled infomlalion
from Ihe OrrslolVn Bank (through Mr. Frank Kozier) and from Ihe Kah/ers' altorney (Mr.
Faller) whelher those cntilies IVere making a claim under the Eric Insurance Exchange policy
of insurance. Funher, I called both panics in late Mayor early JUIW again requesting
informalion as 10 whelher or not any claims would be fonhcoming. I did not receive any
response from Ihe bank or tJle Kahlcrs' aUorney. Lasl week I ar,lempled 10 detennine whether
any claims would be fonhcoming and learned Ihat, apparently, on June 22, 1998, AUomey
Faller's colleague, Michael J. Hanft, Esquire, fonvarded a packet of dOcumelHs 10 me, which
were never received at Ihis firm,
.
\,
1998.-0030 I seO'1"I":; 1'] N
] N: ,MICE GHOUl'
Reference No..: }-,i 1,,<1. . . . . . . . :
Case 'l'ypc.....: HI< 1 'J' OF SUJo1t.l0N:i 'l:i.It!", . : . . . . : . :,
Judgment....... .00 ~xLcuLlon D~LL
Judge Assigned: SaL/Dis/GnLd,.
Jury 'l'rial. . . .
Higher Court J
Hioher Court 2
************.*."**"'*************A*******************t***********************,
General Index Attorney Info
SCOTT'S PINE 'I'REE INN INC I'LAIN'l'IFF WIX RICHARD H
1. 710 CENTERVILLE ROIID
NEWVILLE I'A 17241
ERIE INSURANCE GROUP
4901 LOUISE DRIVE
ROSSMOYNE BUSINESS CENTER
MECHANICSBURG PA 17055
J/21/J99B
B: 14
0/00/0000
0/00/0000
DEFENDI.NT
HENRY MICHAEL S
CAPRIOLI MADELINE
Judgment Index
SCOTT'S PINE TREE INN INC 6/18/1998 JUDGMENT OF NON PRO:
*******************************************************************************
* Date Entries
*******************************************************************************
01/21/98 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED
01/23/98 SHERIFF'S RETURN FILED
Litiqant.: ERIE INSURANCE GROUP
SERVED : 1/22/98 WRIT OF SUMM
Costs.. ..: $28,68 I'd By: WIX WENGER & WEIDNER 01/23/1998
ENTRY OF APPEARANCE FOR DEFENDANT BY MICHAEL F HENRY ESQ AND
MADELINE CAPRIOLI ESQ
PRAECIPE FOR RULE TO FILE COMPLAINT BY MICHAEL F HENRY ESQ AND
MADELINE CAPRIOLI ESO
RULE TO FILE COMPLAINT BY CURTIS R LONG PROTHONOTARY
AFFIDAVIT OF SERVICE OF RULE TO FILE COMPLAINT
PRAECIPE FOR JUDGMENT OF NON PROS AND NON PROS ENTERED
CURTIS R LONG PROTHONOTARY
ENTERED ON DOCKET 8/11/98 AND NOTICE MAILED 8/11/98
07/23/98 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY ~ADELINE CAPRIOLI ESQ
DEFENDANT'S PRAECIPE FOR JUDGMENT OF NON PROS (WITHDRAWN FROM
ARGUMENT \
*******************************************************************************
* Escrow Information
* Fees & Debits Beo Ba1 Pvmts/Adi End Ba1
********************************~**********************************************
02/04/98
04/14/98
04/14/98
04/20/98
06/18/98
35.00 35.00 .00
.50 .50 .00
5.00 5.00 .00
5.00 5.00 .00
9.00 9.00 .00
------------------------ ------------
54.50 54.50 .00
*******************************************************************************
* End of Case Information
*******************************_.***********************w***********************
WRIT OF SUMMONS
TAX ON WRI'l'
SETTLEMENT
JCP FEE
JDMT
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IPI Tile counr or COtt1ON I'LCA~
. .J!'llJEHLMJll r.OIl/Hr. ('CNtl$YI.VAIIIA
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Scott's Pine Tree Inn,
Incorporated
1706 Centervi11e Road
Newville,' PA 17241
No. 9.j-73,d...5 )If,r(1,J.
CIvil Action - (X) La~
( ) Equity
Brie Insurance Exchange
4901 Louise Drive
P.O. Box 2013
Mechanicsburg, PA 17055-0710
...,
versus
')
PlalntifHs) .!.
Address(es)
DefendMt(s) &
Address(es)
~C I PE FOR IIR I T OF SU/otIONS
TO THE PROTHONOTARY OF SAID COURT:
Please issue writ of summons in the ~bove-captloned action.
X I/r I t of Summons sh~ II be j ssued ~nd forwarded to ( )Attorney (X)Sheri ff
Richard H. Wix, Esquire
Wix. Wenqer , Weidner
4705 Duke Street
Harrisburq, PA 17109-3099
(7171 652-8455
N~mes/Address/ Telephon No.
of Attorney
,St:o 0 ~ lj
S!gn~ture of A~torney
~
(
Supreme Court 10 No. 072 7'1
Date: December 31, 199B
I/R I T OF SlJtoH)NS
TO THE ABOVE NAMED DEFENDANT< S) ;
YOU ARE NOTIFIED THAT TliE ABOVE-NAI~ED PlAlfITIFFCS) HAS/HAVE CWI~ENCED AN
ACTION AGAINST YOU.
Date: /ol-. '5L- 9 f
'7:~
by
/
Deputy
( ) Check here I' reverse Is issued for edditlonal Information
fI, - 55
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IN TilE UNITED STATES DISTRICT COUR'r
FOR TilE MIDDLE DISTRICT OF PENNSYLVANIA
SCOTT'S PINE TREE INN, INC.,
Plaintiff
vs.
CIV. ACTION NO.
I:CV 99-0108
(Honorable Judge Kane)
~.
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ERIE INSURANCE EXCHANGE,
Defendant
JURY TRIAL DEMANDED
COMPLAINT
AND NOW, comes the Plaintiff, Scott's pine Tree Inn, Inc.,
by its attorneys, Ihx, Henger and Weidner, and sets forth the
following Complaint:
1. The Plaintiff is a Pennsylvania corporation who at all
times relevant hereto was operating Scott's pine Tree Inn, Inc.,
at 1710 Centerville Road, Newville, Pennsylvania.
2. Erie Insurance Exchange is a Pennsylvania corporation,
and at all relevant times hereto, was authorized under the laws
of Pennsylvania to engage in the business of insurance, with a
mailing address of Box 1699, Erie, Pennsylvania 165301.
3. Scott's pine Tree Inn was at all relevant times a barf
restaurant business located at 1710 Centerville Road, Newville
Pennsylvania.
4. On or about June 11, 1996, Defendant issued an insurance
binder, insuring the pine Tree Inn from the loss of fire to the
extent of $328,500.00 for loss of building, and $150,000.00 for
loss of content..
.'""
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,
5. On or about August 10, 1997, a fire consumed the Pine Tree
Inn, reSulting in a total loss to the building and business
equipment, and Plaintiff's loss was in excess of the policy limits
issued by the Defendant.
6. At the time of the fire, Harlan J. Kahler and Jean H.
Kahler were lienholders under the terms of the policy of insurance
issued by the Defendant.
7. Plaintiff notified Defendant of the loss and has submitted
a proof of loss to Defendant, and has performed all conditions
precedent which are required of it under the pOlicy. 8. Defendant
has breached its insurance contract and has denied any liability,
not only to the Plaintiff, but also to the mortgage holders.
9. As a result of Defendant's breach of its contract agreement
and its failure to pay either Plaintiff or the Kaylers for the
loss, Plaintiff was forced to file for protection under the
bankruptcy laws of the United states of America.
10. Defendant, acting through its agents, servants, or
employees, made fraudulent and negligent representations to the
Plaintiff resulting in damages to the Plaintiff.
11. At all times relevant hereto, Defendant breached its duty
of fair dealing and acting in good faith.
12. Defendant was negligent in its investigation of the fire
and in its denial of all claims arising out of the fire,
2
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lUX, WENGER & I-IEIDNER
,
"".~
CERTIFICATE OF SERVICE
AND NOW, this 1st day of October 1999, I, Richard H. I-lix,
')
Esquire, of the firm of IHx, Wenger & Weidner, attorneys for
Plaintiff, hereby certify that I served the within Complaint this
date by depositing a copy of same in the united states mail,
postage prepaid, in Harrisburg, Pennsylvania ,. addressed as follows:
Madeline Caprioli, Esquire
COZEN AND O'CONNOR
The Atrium
1900 Market street
Philadelphia, PA 19103
,I
ByCCL~,9_~ -N L~
Richard H. Wix, I.D. #07274
Attorneys for Defendant
4705 Duke street
Harrisburg, PA 17109-3099
(717) 652-8455
For the reasons set forth herein, the Complaint filed by the Inn
against Erie must be dismissed in its entirety pursuant to
Pennsylvania Rule of Civil Procedui'e 10;W la) (4) for legal
insufficiency of the pleading. 1~e Inn has failed to state any
claims against Erie upon which relief can be granted.
II. ARGUMENT
A. Standard of Review.
Preliminary objections test the legal sufficiency of a
challenged proceeding. Composition Roofers Local 30/30 B v.
Katz, 398 Pa. Super. 564, 581 A.2d 607 (1990).
Pl"eliminary
objections must be sustained if the plaintiff is unable to prove
the facts necessary to establish the legal sufficiency of its
claim for relief or that jurisdiction exists over the defendant.
Where these facts are not pled, a complaint must be dismissed.
FirinG v. Kenhart, 4GG Pa. 560, ~)63-5(j4, '353 1~.2d 833, 835
(1976); Brouse v. Hauck, 330 Pa. Super. ',,8, 478 A,2d 1348 (1984);
Gallucci v. Phillips I< L'Tacobs. 1no" 418 Pa. Super. 306, 614 A.2d
284 (1992), appeal denied, 533 Pa. 660, (':,5 A.2d 1193 (1993).
Undel- this standal"d, the COULL is not required to accept as
true a pleader IS conel usian:3 ui 1 aw. ,C~,~-!.!1t- i ;:]00 v. P~nnsvl vania
Nat'l MUL. Casualty Ins.Co" ,;18 I'd. SUp.'l. 17b, Ib5, 613 A.2d
1235, 1238,"39 (1992). '~'''e .11,"('. Bj,lJWl1iy,j 'J. N.K.D,S. Assoc..
l:!td., -120 Po.. Super. ~~:;.1, ::~ll'l (,1,~ J\.::~d '100, 701 (1992), appeal
ci~1]jed, S3.~ Pa. +'~"~.1, i-,:~6 ,~\.:)d 1]1,,~ (]',"j~"
IJnderRule 1028(a) ('1) oj tl1.' 1','nm;ylv,1I1i:i Rul':'G ot civil
Procedure, prel iminary obj eet. iOIl:; may b" j il,'".1 \'0 emy pleading
based upon the legal insuffiei,':ne)' of " pJ'';lding,
Pre 1 iminary
object.ions in t.he nat.ure of i1 demurrer ',;)lOuld be sustained, and
the complaint dismissed, where it. appears with certainty t.hat the
law permits no recovery under the allegations pleaded.
Winthrop
",
& Co.. Inc. v. Milqrom, 447 Fa. Supel'. 140, 668 A.2d 557 (1995)
In its Complaint, tlJe Inn vaguely references claims for
breach of contract, fraudulent and negligent misrepresentation,
breach of the duty of good faith and fair dealing, negligence and
bad faith under 42 Pa. C.S.A, 58371.
The Complaint filed by the
InIl, 110wever, must be dismissed ill its elltirety pursuant to
Pennsylvania Rule of Civil Procedure 10:28 (a) (4) for failure to
state any claim against Erie upon which relief can be granted.
B. The Judgment of Non Pros Entered Against Scott's pine
Tree Inn, Inc. Bars Any Later Suits Against Erie.
Apparently, the Inn believes that it can disregard the
Pennsylvania Rules of Civil Procedure as t.o the opening of
judgments of non pros, and ;':imp])' fil," \'hit after Writ of Summons
against the satTle c]e:fenaal1tr; for t:h\~~ :~dll1e ('1.3ims, even though a
priOl' j1.<dgment. of non pre," ."xi. ;3t.;;.
:Jnd,:~J. Pennsylvania law,
hO\oJev('r, the Inn must til-:,;t llh,V(-'\ d (.'l:i.n-t to vacate or open the
j1Jd~)!11(..nt of 1101] r\ro.'~ ('nt \::'1 I d. (']1 l')UJ1'.~ 11-1, J:)~j8, in order to file
i t:~ ;-.~('c(.\nd Id.\oJ:;ui t l~-' ,'in')' ': jj,
'''j'. ,i\Lj_:~;:;t Eli,:", dne) ~~atisfy
t J'k' I"' q\l J r'..:.nh~nt.;,; ()1 h ~1 J \
~\.'1 ~_jl' ',!,'.ninc-,! (ll jUcllJ'ments.
Sc:'e
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Pa. R.civ. Pro. 273.3 and 3051; G~ltes v. Servicelnaster Camm.
Serv., 631 A.2d 677 (Pa. SupeL 1~J93), peUtioll for a],lowance of
appeal denied, 641 A.2d 3IG (J99:1).
The Inn has not filed a retition in any court to vacate the
judgment of non pros or attempted to satisfy the requirements
necessary to open the said judgment and is now barred from doing
so. Further, it has not filed a Complaint stating a meritorious
claim against Erie within the two-year suit limitation period and
without a court order opening the judgment prior thereto, it is
now barred from doing so.
In Gates, supra, 631 A.2d at 678, the Court of Common Pleas
of Dauphin County entered a judgment of llon pros against the
plaintiff.
The Superior Court affirmed the trial court's
decision to grant the defendant's motion for judgment of non Pl:0S
and thus, denied the plaintiff's petitio]] to open the judgment.
The plaintiff in Gates filed a Complaint against the
defendaIlt [01" breach of an cro1 a;"ld v..rittc:"; contr3.ct of
employment and wrongful discharge.
The defendant moved for
.
judgment of non pros du." to the plaintiti:'.'3 lad; of prosecution
of the suit. Plaintiff a}:~lued that the .';td\:ut,e of limitations had
not run on hf:r cause of dct ion dlld tJ1at t l>~" d.l.~:t(,:lld;tnt had not
suffered prej udice as a ref::;!.] 1 t of th(~ dJ:: ] oJy.
11owever, the trial
court qr;cintf':-d tlll~. d(;,t.t_"JHLil1t (:~ mntl('ll, jL'::~_\',l':::.:iL(]' 111;-lt the
plaintiff could not ignore it.:3 obl.i.qation t.o move forward with
the case. Id. at. 679.
In upholding the trial court's decision not to open the
judgment of non pros, the Gates Court held that, prior to filing
a second suit on the same claim, a plaintiff must petition the
court and satisfy the three pronged test to open the judgment of
n011 pros. The plaintiff must show: (1) the petition to open was
timely filed; (2) there was reasonable explanation for the delay;
and (3) a meritorious cause of action exists. Id. at 682
(citing, Bucci. et al. v. Detroit Fire and Marine Ins. Co., 167
A.2d 425 (Pa. Super. 1933)),
See also Bon Homme Richard Rest..
Inc. v. Three Rivers Bank and Trust. Co., 444 A.2d 1272, 1273 (Pa.
Super. 1982) (whether party requests that case be reinstated or
requests to start same case under new term number is not
material; what is important is whether he had a cogent reason for
inactivity) .
The Gates Court held that if a non pros is entered against a
party, even if the statute of limitations had not run, the
defaulting party may not file a second action. Rather, "the
statute of limitations comes into play only in t.he sense that, if
it has not run on the particular cause of action, the plaintiff
may seek a re in:;tatement of t ]:'.-, :';u i t \~i 1:h the payment of costs
and s;~ti.(~f;1ction of t-hi~' t-r.i -nil~-tjr,.;. t:,,,..::~t for or)en:inq -iudqment of
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actions.
The plaintiff never moved the court to remove either
judgment of non pros.
The de1:endant f ilc,d successful preliminary
objections to the third '3uit., ds<c;c'rting l. hat the plaintiff's
claims were barred by the judqments of non pros.
The Superior Court in Schuylkill Navv held that the
plaintiffs third action "should not have proceeded before the
trial court unless or until .
lit] filed a petition to strike
and/or open the prior judgn~nt of nrnl pros, and the trial court
granted the motion." Jd. ilt ')(j7 (citing, Gates v. Servicemaster
Commercial Servicet G31 A.2d 1,'17 (Pa. .super. 1993); Petrone v.
Whir'lwind. Inc.., 664 A.2d 172 (Pa. Super. 1995); Bucci v. Detroit
Fil'e & Marine Ins. Co., 1G7 1,. 425 IPa. Super. 1933)).
Specifically, the court found that, in li'1ht of tll<= judgment of
non pros, the plaintiff had to ;:;e..ok penni,;;:;ion to proceed with
its third action through a petition pursuant to Pa.R.Civ.Pro.
3051.
In light at th.i:o decisional authol'ity, chis Honorable Court
should dismiss the action tiled by Scott's pine Tree Inn, Inc.
against Erie Insurance Exchan~)l-~.
TI1.0 ".'):i ,;tence of the judgment
of non pros entered en .June J f~ t J 'j ~'H :l}'\ 'C'] U(k~:3 the Inn from
filing either ~ Complain~~ (
against. any Eri(~ dl:il'lHj;~l1t.
,,~1'y" .iU(n~ jc.;j,d \\lrits of Summons
Edther I tllt' Inn ',..'d:~ ~"~U J 1" U. t \ It'~
:' 'll t.ld:,; Court to
vacat(:~ 'chI..:' jud~~:n"nt ('1 "'1.'
1:~.'1"1 J i.i-, ''iv.l']'(-). :~73.3 and
'. . ''', ,:;" ~ ~ " " \', ,".' , ,,' " '. ~".\ Ll. 'l . " ' . , " I' ,>, '.. , :; , . . . '. \ -,.' " ' .
,..,
Because the Inn 118Vf~r obtc-Iin(;'ej ,J CC)lll't ol'd(~r to vacate or
open the Judgment of ))0)) pro.'] ',nl"ered on .June 18, 1998, the
second \.-Jrit of Summons fil(~d un Dl"('(>ll!bel'"
"
_i.."
1 ~) ~J(3 I
cilld the
,.~
Complaint filed on October 1, 1999, must: be dismissed,
This
action is null and void and has no legal effect.
Pennsylvania courts strictly enforce the suit limitation
)
provision in insurance policies.
Hospital SUPPort Services. Ltd.
v. Kemner Group. Inc., 889 F.2d 1311 (3d Cir. 1989)
Schreiber v.
)
PennsYlvania Lumberman's Mut. Ins. Co., 444 A.2d 647 (Pa. 1982)
General State Authoritv. v. Planetc Ins. Co., 346 A.2d 265 (Pa.
1975) .
Since the Inn has not filed a court sanctioned lawsuit
against Erie within two years from the August 11, 1997 loss, it
has breached the policy's suit limitation provision,
This
violation of the suit limitation provision bars recovery for the
Inn under the Erie policy.
D. The Inn's Complaint Fails to State a Claim Against Erie
Upon Which Relief Can be Granted for Fraudulent or
Negligent Misrepresentation.
The Inn has entil'ely fCliled to state a claim upon which
relief Cdn be granted ill it:; CompLd.nt for frauduhont or
negligt.:"nt misrepresentation dQ,lin:3L E}":i\_:,.
T!1e l~equiremE'nts of a ca:J:Jl':: oj actii.!)"j tor int\.:.-::ntional or
tl'audulent misrepres.,'ntatioll :1l'f:: il) ol minrepreselltation; (2) a
fl'dUdu]ent utt...!]'ance "i th,. mi:;r"))J'":;"lJ\ ,,1 ],"n; (3) intention by
tlk 1"";;.']' l.!J"t th,. r""lLi'.'L! \':i}' :n""'L:: j". ]))cJuc..cJ to act; i.l)
t.-I,~-;"",~'~~.l"'.". ""'~.' "-~";-,,'" ~:-~;"~''':''-':>'-'-'"'-'--:'.=:T.i~ .r--<;';:,:""~-'"',.--~.-~:-"~;1?<-;"', """: '", .,. ,! ' .' ',' . , _;',
'.,
justifiable reliance by the recipient ()11 the mi::;1"(~:presentation;
and (5) damage to the recipient as tllt-? p}'r~)ximate recult.
Savitz
v, Weinstein, 395 Pa. 173, 1<1') l\.2d 110 (1959);
Bash v. Bell
Telephone Co., 411 Pa. SupeL 347, 358-5'J, 601 l\,2d 826,831
(1992) .
The elements of a cause of action for negligent
misrepresentation are: (1) IIlisrepresent::ation of a material fact;
(2) the representor must either know of \,he misrepresentation,
must make a misrepresentation without knowledge as to its truth
or falsity, or must make representation under circumstances in
which he ought to have known of ics falsity; (3) representor must
intend the representation to induce anocher to justifiably act on
it; and (4) illjury must:: result to a part::y acting in justifiable
reliance on the misrepresentat::ion.
Gibh.', v, Ernst, 538 Pa. 193,
647 A.2d 882 (1994).
In support of tl1e InnIs plJrpOl"tPd ('J3itl1 far tr3udulcnt and
negligent misrepresent:ation, the Complaint r;imply ~~t3tes:
10. Defendant, ;icting thl"OU~1h :itf.-; a.~,;ent~_"
servants, or l2mplCJY(:'I~s I Ilkld(:. f ~',-l udulent dnd
negligent mil:;rern~1::-";'__~J1tdtion tu t!h? P1('~:intiff
resulting in dal1la~y?s to the PJ.Lllnti.ff.
(See Exhibit H to Eric.':; Pn'limilliH'/ Cibi"ction:;)
Giving the Inn (:'v<'ry j;.I_']')1 tit l:~lf tj~,.., \1("Ul)l I J1C::....'t~ver, this
single alle<:]ation C':--il"ll'lC.,t I"': ';;bl)' :-;\ll-=r'<~-~ 'l;,_}2 "']:Jim:~;.
Such an
allegation i:3 r}~jt\~:l1t.ly ii,
"l_' :It ,j; .. l~ .i:~' 1 ;J l.t~'" L':C'~Hl:3e it
doeB not all'~'qc' dny ! ;let:'
l .. ~ I j' .1
:.' .....i~ j; i !.,-, :';r\'~~cificity
, ~
,/
required by Pennsylvania Rule of civil Procedure 1019(b) relating
to fraud, any facts whatsoever as to what the alleged
misl-epresentations El-ie suppo,;,,,dly made \'I'ele or LO ",ham Erie made
them,
"In order to plead fraud with sufficient particularity,
. ,I .' , . , , ,. \,' ", " ",'. ',' _ '." ,,",':' " ':' , "_' ," ;,1', ',. ,'. ..'.' '-,,' ".' '. .." ",
the pleadings must adequately explain the nature of the claim to
the opposing party so as to permit the preparation of a defense,
and the pleadings must be sufficient to convince the court that
the averments are not merely subterfuge." Martin v. Lancaster
Batterv Co" Inc., 530 Pa. 11, 606 A.2d 444, 446 (1992) The
party alleging fraud must plead facts which, if proven, would
actually constitute fraud. Com. bv Zimmerman v. Bell Telephone
Co. of Pennsylvania, 121 Pa. Comn1\'llth. 642, 551 A.2d 602 (1988)
See also In re Estate of Schofield, 505 Pa. 95, 477 A.2d 473
(1984); Bata v. Central-Penn National Bank, 423 Pa. 373, 224 A.2d
174 (1966), cert. dellied, 386 D.S, 1007 (1%7). Here, no such
averments appear in the Complaint.
Moreover, the In~1 does 110t plead even the basic elements
required to establish a claim for fraudulent or negligent
misrepresentation und'~r Penllsylv:mi.a la\'I, llor does it allege any
factual support rh3t Erie k:lew OJ ,;hould have knOl'lJ1 of the truth
or falsity of the purported mi:3represent:,tion, that Erie intended
the nopresentation to induce the Inn to justifiably act on it, or
what da.magel if ;1ny, thl:;" ]l~ll ,lll(:Q,'dJ'y' ~;u1[ered a::i a result of
the nonexistent ~:epresentatiollS made by Erie,
(Sec' Exhibit H to
"
Erie' ~3 Preliminary Objections)
Simply put, the Inn's Ullo.' 11n," C011Clusion of l.'\w as to some
"
unspecified or unidentified representations supposedly made by
someone, somehow connected to Erie, cannot possibly support a
claim for either fraudulent or negligent misrepresentation.
,
Thus, this alleged claim must be dismissed for failure to state a
claim upon which reliof C,]ll be, granted under Pa. E. Civ. Pro.
1028 (a) (4) .
"
E.
The Inn's Complaint Fails to State a Claim Against Erie
Upon Which Relief Can be Granted for the Breach of the
Duty of Good Faith and Fair Dealing.
"
Furthermore, the Inn's purported claim for the breach of the
duty of good faith and fair dealing must fail.
Under
Pennsylvania law, an insured has no commOll law claim for "bad
faith" refusal to pay a first party cldim ullder an insurance
policy. .!)'Ambror;io v. P,c.J1J10}vania Nat' I Mut. Casualty Ins. co"
494 Pa. 501. 431 A.?r1 qGG (J..~j81) i Co:~:!~cl-t~ial Union Assur. Co. v.
Pucci, 523 F.Supp, 1310 il'J.D. Pa. 1981); Harrison v. Nationwide
Mut. Fire Ins, ro., 580 F.Supp, 133 IE,D. Pa. 1983). Any such
claim in Golely thf! cr(:,:-ittl1~I::;' llf ;,Latutt.::'.
,';",0 .J~: P,l.C.S. ~ 8371.
Tn D"j'\mbrns)n v. PI'-.nl1;~v]\',ll1i,--j N(-~t~'l r-1ut, Ca~:~. fns. Co., 494
Pd. SO}, .~31lJ...2d 9G(~ (J~-'Hl), the P'?nn;:,ylvania Supn::m'2 Court held
that t]v: Unfair ]lH3Ul',jnc''-'~ lJd('ticl\;_~ J~ct, .;0 Pd. C..S.A. 51171.4,
11'1].1'_" ;;u1fjcj!'lltJ)' (i'~1'2,!,'d j',j(i l.dlL
l:duc,t 1: y ~ n:-?\ll~erS ()nd
__~~'.~"__fl".__.'_.'_____ _.
. ,.:1.)' I, .: . ,.t ',," ,. ~ r~,'~", -. -" :'~""''''"''~''''!''';.:~;~~ -;-7~.-'-;-;.1~',..: \": "'.. ". '" '. .
'"
'~
declined to create a common law c,c,us,,, oj ,lction f01' breach of the
duty of good faith and fail' ck'alinCj. Tlk' Inn's pUl'ported claim
~. ",' ...~';-.l' " -I: ---; ""--~"~-~,";"""'~',"-'-::"T~----"-;-;':~""'''';'~",:,::''':~f'--;'~'''': .-:-: - ,:'. ." "'. .' ,
----
. \~:'
for the breach of the duty of goocJ faith and fair dealing is
"\
nothing more than a breach of contract action against Erie based
upon good faith and fair dealing, and therefore, must be
dismissed. Garvev v. Natiollal Granqe MlILuaJ. Ins. Co./ Civ. A.
No. 95-0019, 1995 WL 115416 (E.D. Pa. 1995).
Moreover, as with its alleged cldim tor misrepresentation,
the Inn provides no factual basis whatsoever in its Complaint for
,
any claim for a breach of the duty of good faith and fair
dealing.
Instead, the Complaint only states:
11, At all relevant times, DeLelldant
breached its duty of fair dealing and acting
in good fdith.
(~~ Exhibit H to Erie's Preliminary Obj,?ctions) .
There are no allegations as to exactly how Erie breached any
duties at all to the Inn, let alone allY purported breach of the
duty of good faith alld fair dealing.
Such patently deficient
.
allegations are insufficient at; a matter ot law,
Thus, because
the Inn cannot establi"h any all,C(],'d h"",lCh of th(~ duty of good
faith and fair dCo.linl], such claim ll1U::~::: jl' di~3misr)c~d under
)
Pennsylvania Rule of CiviJ. F'r()cedur~:" J():~H (d) (.j) .
J
F. No Cause of Action Exists Under pennsylvania Law For
Negligent Investigation or Negligent Denial of a Claim
And The Inn's Complaint Even Fails to State a Claim
Against Erie for Negligence Generally.
There is no cause oE C1ction rUl' 111=~lJ.igent investigation or
negligent denial in dn insurance claim context.
Further, to
establish a claim for negligence generally under Pennsylvania
law, the Inn must show that Erie breached a known duty to
Plaintiff and that said breach caused Plaintiff harm. See
Checchio v. Frankford Hosp., 717 A.2d 10581 iPa. Super 1978)
Martin v. Ervis, 711 A.2d 458 (Pa. 1998); Mitzelfelt v. Kamrin,
584 A,2d 888 (Pa, 1990). The Inn's negligence claim must fail
because no such cause of action exists and it cannot establish,
and has not averred, how Erie breached a known duty, nor can it
show that it suffered damages as a result of Eire's actions.
Rather, true to form, the Complaint states:
12. Defendant was negligent in its
investigation of the fire and in its denial
of all claims arising out of the fire.
(See Exhibit H t.o ErlP I s Pn?liminary Obj0ctions)
Moreover, the Complaint does not allege any facts whatsoever
to establish, giving it the b'~nefit of al] dmJbt, that, in fact,
Erie was Ilegligent ill jts illvestigatioll of the fire or the denial
of tIlE l11n'8 clai.m.
The Inn dees not <;-dJ,_:~qe th<:Jt the fire was
not incendiary, does not di~::;pute t:h,_~ cOl1clu~)ions of the
pennr:;ylvania Stat.e Pl~-'}ic(; anc] Eri(:":J pJ"]\'-lte}y l'etained cause and
oriqin jl1VI:::]tj_q;.ltor:~ i 11,lt t-jl"" : iJ". 'd.i:; :l, "'llLii,iJ_Y', nor dce~3 it
Ir.;
i' .
, -,
! :
I "
~-'J
\
I
I
,
I
,
I
.
\
," . . .~' -,:. c."', "'," ,-:;,-.---r>.--~r.,' .':"'~'~"-\~;'-'-!'-";':-:-<'~~"" .. ";',"';', ,:"" I.;.......;. "" ',."
...~
S;;Q"., 437 Pa. Super. 108, 649 1'I.2d 610 (1994); D'l\mbrosio v,
Pennsylvania Nat'l Mut. Casualtv Ins. Co., 494 Pa. 501, 431 A.2d
966 (1981); United States Fire' Ins. Co. 'J. Roval Ins. Co., 759
, .."
F.2d 306, 309 (3d Cir. 1985). An insurer's negligence or bad
judgment is not bad faith.
Terletskv, 437 Pa. Super. 108, 649
A.2d 680, (citing, Rottmund v. Continental Assul'. Co., 813
F.Supp, 1104, 1108-09 (E.D, Pa. 1992); Covne v, AJ1state Ins.
Co., 771 F.Supp. 673, 677-78 (E.D. Pa. 1991}).'
Given those standards, the Inn's claim under ,12 Pa. C.S.A.
I
18371 must fail as it has alleged no facts ill support of its bad
claim, let alone any conduct that rises co the level of bad faith
as defined under Pennsylvania law.
Rather, as with the Inn's
other attempts to state claims against Erie, the Inn's Complaint
includes only a legal conclusion tlwt Erie's actions allegedly
constituted bad faith. This i.s woefully insufficient to state a
claim under 42 Pa. C.S.A. 18371.
The term insurance "bad faith" 11;", acquired a particular
meaning:
.J
Insurance. tlBad Faith" . i:'3 any' frivolous or
unfounded refusal to pay proceeds at a policy; it is
not necessary that such r(::fusa,l L:.e :]"dudulent .
such conduct imports a \jishon(;~st. pl.ll-pO~3e and means a
breach of a known duty. . tlu'ouqh :;ome mot i ve of
self-interest 01' ill '",'i1J i In.':' 1"(> !Jl.oq:J iqenc.-_~ or bad
judgment is not h,1d faith. E):lC').:':~. ],:lW nict1Cll1.;1rV 139
(c;th ,:::d. 1990) (~::it'-Hjl"n;' (~~mit't.,-:d'l.
I
T('~-]et;.k?, .~37 f\-l. ~~lq':"l". J ." h.j I }~.:_' (l".it.inq J~ottmundt
8]3 F. Supp. at IJ02 (I '; l~2_:"_1 'i'~.. ;:!l~ ,(' /,'/"7-78)).
The Inn's conclusory use of the word "negligence" is not
,,"
sufficient to state a claim for bad faith.
Terletskv, 649 A,2d
680 (1994).
In fact, the facts of this case overwhelmingly
)
support that Erie had a reasonable basis to decline to pay the
Inn's claim based upon the incendiary nature of the fire as
determined by the public authorities and Erie's cause and origin
investigators, the involvement of the principals of the Inn in
setting or procuring the fire, the failure of the Inn's
principals to cooperate in the loss investigation and their
violation of the concealment and fraud provisions contained in
the policy of insurance. None of these defenses have ever been
contested, disputed or responded to by the Inn in any fashion.
IDlder the most liberal of standards, the Inn has not stated
a claim for bad faith under 42 Pa. C.S,A. 58371 upon which relief
can be grdnted. Thel'efol'e, the Inn's purported bad faith claim
must be dismissed under Pennsylvania Rule of Civil Procedure
1028 (a) (4) .
III. CONCLUSION
In sum, the lnll's Complaint is bereft of any facts at all.
Rathel', it contains only J':',q<11 c'::Jl1clusiolW. Thus, for the
reasons set fOl"th hen?in 'll1cl in Erie's Pl'celiminary Objections,
th(~ '~1ction filet) by ,l-":cctt':',; P.il1(" Tn~~(-: ]nu, Inc. against Erie
,
Insurance Exchange should be dismissed pursuant. to Pennsylvania
Rule of Civil Procedure 1028 (a) ('1). Ede l:eguest.s that this Court
dismiss this act.ion in its
Dated: January 12, 2000
ent ir.:=:ty
'.1 ~ 1- \~
"""-'-jJ
prl2juJice.
,. . - t' " ,'.. "; ,:",.,., ": ,:", ....~'" .":, . "'~',\ "J" ." '". .',
" ,
Respectfully submitted,
COZEN ~I f ")~~~~~ ',~OR-'Ii\',;
lJ W0,. r '-
BY:
MICHAEL F. HE ESQUIRE
lIttol'ney I.D. No. 17690
MADELINE CAPRIOLI, ESQUIRE
Attorney I.D. No. 69733
Attorlleys for Defendant,
Erie Insurance Exchange
.\
C E R T r F reA T ION
I, Madeline Caprioli, attorney for defendant, Erie Insurance
Exchange, hereby certify that on the 12th day of January, 2000, I
did cause a true and correct copy of Erie's Preliminary
Objections and the Memorandum of Law in support thereof to be
mailed via Regular U.S. Mail to Counsel addressed as follows:
Richard Wix, Esquire
Wix, Wenger & Widner
4705 Duke Street
Harrisburg, PA 17109-3099
COZEN AND O'~ON.N1R.!
\ ! ! ~ ., h .
.~~ \11/ 1\..IJt.'/ /..
\ VLlY' ~
MADELINE C~PRIOLI,
.'
BY:
ESQUIRE
, (.., ,: ' ' . '. ., .;' ..' I, \',' .".', '. " , I ",.-.' .",..... :.' . :.: '., . ',,', ,': ',:" ,r .' ",.,' .,' '., .
v.
No. 98-7325 Civil
Scott's Pine Tree Inn, Inc.
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
Erie Insurance Exchange
Defendant
Scott's Pine Tree Inn, Inc., and
Gregory A. Scott and Linda A.
Scott,
Plaintiffs
Jury Trial Demanded
v.
No. 99-4857 Civil
Donald G. Weitzel, Jr., Donald G.
Weitzel, Sr., Weitzel Insurance
Agency, Erie Insurance Group and
Erie Insurance Exchange,
Defendants
Jury Trial Demanded
IN RE DEFENDANTS' PRELIMINARY OBJECTIONS
ORDER OF COURT
BEFORE HOFFER, P.J., HESS, AND GUIDO, JJ.
AND NOW, June 28, 2000, after consideration of the briefs submitted by
both parties, the facts of record, and the applicable law, defendants' motion to
dismiss the complaint on the grounds of the existence of a judgment of non pros
is denied, as the judgment was not against a legal entity. Defendants' motion to
dismiss based on the limitations clause within the insurance policy is denied as
the defense of statute of limitations may not be brought as a preliminary
objection. Defendants' preliminary objection as to the demurrer to count three is
'. '. .... - -., . .',' " . ,f, ',~ I ~.' t. : .' :",'. "~' . '_ . . " . ' . ,',' '. .',' . . . ,
.'-
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lm'!.;li k"'1l\l;,'<l",$",."':"","::ff """,",':t',.:. ,:"",."~.',,,,;,
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-'-
" .
Scott's Pine Tree Inn, Inc.
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
" . . ., , ; " < f . , '.' ", " -:., ~. ,_. : " . ", ~ . ~ " . 1, " . .' . '. ",' , ,". I.. . . . ,
Plaintiff
v.
No. 98-7325 Civil
Erie Insurance Exchange
Defendant
Scott's Pine Tree Inn, Inc., and
Gregory A. Scott and Linda A.
Scott,
Plaintiffs
Jury Trial Demanded
v.
No. 99-4857 Civil
Donald G. Weitzel, Jr., Donald G.
Weitzel, Sr., Weitzel Insurance
Agency, Erie Insurance Group and
Erie Insurance Exchange,
Defendants
Jury Trial Demanded
IN RE DEFENDANTS' PRELIMINARY OBJECTIONS
BEFORE HOFFER, P.J., OLER, and HESS, J.J.,
The above actions have been consolidated for the purposes of addressing
defendants' preliminary objections. Both cases arise from the same operative
set of facts. Defendant Erie Insurance Exchange had insured Scott's Pine Tree
Inn (hereinafter "the Inn") for its interest in the restaurant building and business
since June of 1996. At all relevant times, the Scotts, plaintiffs herein, owned and
operated the Inn, and throughout the investigation of the fire loss claim and filing
of these cases, they have acted as the shareholders and officers of the
corporation. Plaintiffs allege that defendants Donald G. Weitzel, Jr., and Donald
'...
J. Weitzel, Sr. were employees, agents, or servants of the Weitzel Insurance
Agency, Erie Insurance Group, and Erie Insurance Exchange.
On March 25, 1996, plaintiffs Gregory and Linda Scott entered into an
installment sales agreement with Harlan and Jean Kahler to sell the restaurant
business and premises. Plaintiffs allege that on June 11, 1996, defendant Erie,
through its alleged agents, the Weitzel defendants, issued an insurance binder to
the plaintiffs for $328,500.00 for loss of building and $150,000.00 for loss of
content. The binder purportedly identified the Kahlers as mortgagee or
lienholder. Plaintiffs charge that defendant Donald Weitzel, Jr., understood that
the sale of the Inn was via an installment sales agreement, and that plaintiffs
would be covered under such a policy as mortgagees/lienholders.
On August 11, 1997, a fire occurred at the Inn. On April 2, 1998, after an
investigation, Erie Insurance Exchange denied the Inn's claim for insurance
proceeds. Plaintiffs have initiated three cases in this Court by Writ of Summons
against the above-named defendants. The Inn filed its first Writ of Summons
against Erie Insurance Group on January 21, 1998. On June 18, 1998, a
judgment of non pros was entered against the Inn for failure to file a timely
complaint. The plaintiffs have not sought relief from the first judgment of non
pros.
On December 31, 1998, the Inn filed a lawsuit against Erie Insurance
Exchange by Writ of Summons. On January 20, 1999, the defendants removed
the case to the United States District Court for the Middle District of
2
':l:'.
..., ",.",~.'" .,
""- .- -
.
, ,', ". i , ','.' I .' " . " '., ,...' ','.' '.',' ',', , .' ^ I,', . I . oW, " , ,','
Pennsylvania. Subsequently, the Inn and the ScoUs jointly filed a third Writ of
Summons in Cumberland County against Erie Insurance Group, Erie Insurance
Exchange and the Weitzel defendants on August 11, 1999. On October 1, 1999,
plaintiffs filed a complaint in the District Court. On December 13, 1999, Judge
Kane of the District Court remanded this case to Cumberland County Court.
In the complaint filed in the District Court, the plaintiffs allege that (1) the
Erie defendants breached their contract of insurance with the plaintiffs; (2) aU of
the defendants intentionally or negligently misrepresented the extent of coverage
provided under the policy; (3) all of the defendants breached their duty of fair
dealing and good faith; (4) all of the defendants were negligent, resulting in harm
to plaintiffs; (5) all of the defendants have violated 42 Pa.C.S.A. s8371 in bad
faith; and (6) the Erie defendants libeled and slandered plaintiffs Gregory and
Linda Scott.
Defendants preliminarily object to the complaint plaintiffs filed in the District
Court. Defendants make the following objections: (1) plaintiffs may not maintain
the present action against the Erie defendants because they never petitioned to
vacate or open the jUdgment of non pros; (2) plaintiffs may not maintain this suit
because the insurance policy provides that suit must be brought within two years
after the loss; (3) the counts of intentional or fraudulent misrepresentation,
breach of the duty of good faith and fair dealing, negligence, bad faith, and
defamation are pled with insufficient specificity under 1028(a)(4); (4) Gregory and
Linda Scott as individuals are not properly part of this aellon; and (5) Erie
3
Insurance Group is not properly part of this action. We will address each of these
objections in turn.
DISCUSSION
Defendants first claim that because a judgment of non pros was entered
against the Inn in its first suit on June 18, 1998, the plaintiffs may not continue
with their suit until they file a petition to strike the judgment. In order to file a
subsequent suit on the same cause of action for which a non pros has been
entered, one must petition the court and satisfy a three-pronged test to open a
judgment of non pros. See Pa. R.C.P. 3051, Gates v. Servicemaster
Commercial Service, 428 Pa.Super. 568, 631 A.2d 677 (1993).
However, defendants alleged in a prior motion that Erie Insurance Group,
the defendant named in the first Writ, was not a legal entity.l We find, therefore,
that since the original Writ was a nullity from the beginning, the subsequent
jUdgment of non pros is also a nullity and cannot form the basis of a motion to
dismiss brought by other defendants. 2
Defendants' second preliminary objection is that plaintiffs are barred from
maintaining claims against the Erie defendants because plaintiffs allegedly did
, In a signed pleading before the Federal Court. defendants stated that "the Inn sued Erie Insurance
Group, a trade name only." Defendant Erie Insurance Exchange's Motion to Dismiss the Complaint
by Scott's Pine Tree Inn, Inc., In It's (sic) Second Action As Captioned Above, p.3. para.9.
2 A plaintiff may not join a personal representative of a dead person who was never a party 10 an acllon
prior to their death. II follows that an original action against a dead person is a nullity. Cf., Valentin v.
Cartagena, 375 Pa.Super. 493, 544 A2d 1028 (1988), Williams port Firemen Pension Bds. I & /I v E.F.
Hutton & Co. 567 F.Supp, 140 (1983, MD Pal, Thompson v Peck, 320 Pa. 27. 181 A 597 (1935).
4
not bring suit within the two years required under the insurance policy. However,
defendants may not raise the defense of the statute of limitations in the form of a
preliminary objection. Pennsylvania Rule of Civil Procedure 1030 states that "all
affirmative defenses including but not limited to ... statute of limitations ... shall
be pleaded in a responsive pleading under the heading "New Maller." See Pa.
R.C.P. 1030(a). A defense based on breach of a contractual provision limiting
the time for the filing of suit must be pleaded as new maller in a responsive
pleading. When the defense is raised in this manner, the plaintiff, by reply, can
then assert facts, if any exist, which constitute a waiver of such contractual
limitation or impose an estoppel upon the defendant to assert such a defense.
See Graham v. Harleysville Ins. Co., 429 Pa.Super. 444, 447, 632 A.2d 939,
940-941 (1993). Therefore, defendants must raise their argument in an answer,
not a preliminary objection.
Defendants' third preliminary objection is in the nature of a demurrer to the
counts of intentional or fraudulent misrepresentation, breach of the duty of good
faith and fair dealing, negligence, bad faith. and defamation. In general, where
upholding a grant of preliminary objections would result in the dismissal of the
action, a court is called upon to do so only in cases which are clear and free from
doubt. Ambrose v. Cross Creek Condominiums, 412 Pa.Super. 1, 602 A.2d
864 (1992). Since the sustaining of a demurrer results in a denial of a pleader's
claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer
should be sustained only in cases that clearly and without a doubt fail to state a
5
claim for which relief may be granted. If the facts as pleaded state a claim for
which relief may be granted under any theory of law, then there is sufficient doubt
to require the preliminary objection in the nature of a demurrer to be rejected.
Graham v. Harleysville Ins. Co., 429 Pa.Super. 444, 448-449, 632 A.2d 939,
(1993), quoting County of Allegheny v. Commonwealth of Pennsylvania,
507 Pa. 360, 372, 490 A.2d 402,408 (1985).
This is not a case in which plaintiffs have clearly failed to state claims upon
which relief may be granted, Although plaintiffs may have colorable claims,
plaintiffs have failed to allege these claims with sufficient specificity under the
rules of Pennsylvania Civil Procedure. Plaintiffs have filed a complaint in the
Federal District Court that purportedly complies with the Federal Rules of Civil
Procedure. Nonetheless, the complaint is styled as a notice pleading, as is
required in Federal Courts, instead of a fact pleading, as is required by
Pennsylvania State Courts. See Clark v. SEPTA, 691 A.2d 988 (Pa.Commw.
1997). Under 42 Pa. C.SA S5103, when a case is taken to a court which does
not have jurisdiction of the matter, the court must transfer the record to the
proper court, where the case is treated as if originally filed there. 42 Pa. C.SA
s5103(a). The pleadings have the same effect as under the practice as under
the United States Court, but the transferee court may require that they be
amended to conform to the practice in this Commonwealth, 42 Pa. C.S.A.
S5103(b). In accordance with this statute, we require the plaintiffs to amend the
complaint in accordance with the Pennsylvania Rules of pleading, which require
6
. ." . , I " ,.' ',: , ',.' '" '.. "'.,
more specificity than the Federal Rules. See Pa. R.C.P. 1019 (requiring that
averments of fraud or mistake be averred with particularity, that averments of
time, place, and items of special damage be specifically stated, that if any claim
or defense is based upon a writing, the pleader shall attach a copy of the writing).
Defendants have preliminarily objected in the nature of a demurrer to count
three, the claim of breach of duty of fair dealing and good faith. It is true that
both the Pennsylvania and Federal Courts have ruled that Pennsylvania common
law does not create an action based on bad faith for an insurer's failure to pay.
D'Ambrosio v. Pennsylvania National Mutual Insurance Co., 494 Pa. 501,
431 A.2d 966 (1981). However, D'Ambrosio was superseded by 42 Pa. C.SA
38371, which provides that in an action arising under an insurance policy, if the
court finds that the insurer has acted in bad faith toward the insured, the COL!rt
may take all of the following actions: (1) award interest on the amount of the
claim from the date the claim was made by the insured in an amount equal to the
prime rate of interest plus 3%; (2) award punitive damages against the insurer; or
(3) assess court costs and attorney fees against the insurer. See United
Services Auto Ass'n. v. Foster, 783 F.Supp. 916 (1992). Therefore, we grant
defendants' preliminary objection to count three to the extent that there is no
common law bad faith action for an insurer's failure to pay. However, we note
that plaintiffs may preserve count three to the extent that a remedy may be
available under statutory provisions.
7
. . ", . . '" ~ . .' ).' ': t' ,'. r ' .
v.
CIVIL ACTION NO.
98-~ n::J.s ~
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SCOTT'S PINE TREE INN, INC.,
Plaintiff
ERIE INSURANCE EXCHANGE,
Defendant
JURY TRIAL DEMANDED
SCOTT'S PINE TREE INN, INC. and
GREGORY A. SCOTT and LINDA A.
SCOTT,
Plaintiffs
CIVIL ACTION NO.
99-4857
v.
DONALD G. WEITZEL, JR.,
DONALD G. WEITZEL, SR., WEITZEL
INSURANCE AGENCY, ERIE INSURANCE
GROUP AND ERIE INSURANCE EXCHANGE,
Defendants
JURY TRIAL DEMANDED
NOTICE TO DEFEND
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
NO'l' HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU MAY GET LEGAL HELP.
CUMBERLAND COUNTY REFERRAL SERVICE
Court Administrator
Cumberland County Courthouse
CarliSle, PA 17013-3387
(717) 240-6200
, ., ,W' " ,!'. . :" ", _', .'. " " ., .:.": ,": ':,'.. _".' \' '.
!I:l':"'''''~c:t.~",,;,. .
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SCOTT'S PINE TREE INN, INC.,
Plaintiff
CIVIL ACTION NO.
98-7235
v.
JURY TRIAL DEI1ANDED
ERIE INSURANCE EXCHANGE,
Defendant
SCOTT'S PINE TREE INN, INC. and
GREGORY A. SCOTT and LINDA A.
SCOTT,
CIVIL ACTION NO.
99-4857
Plaintiffs
v.
DONALD G. WEITZEL, JR.,
DONALD G. WEITZEL, SR., WEITZEL
INSURANCE AGENCY, ERIE INSURANCE
GROUP AND ERIE INSURANCE EXCHANGE,
Defendants
JURY TRIAL DE~~NDED
AMENDED COMPLAINT
AND NOW, come the Plaintiffs, Scott's pine Tree Inn, Inc. and
Gregory A. Scott and Linda A. Scott, his wife, by and through their
attorneys, Wix, Wenger & Weidner and set forth the following:
1. Plaintiff, Scott's pine Tree Inn, Inc., is a Pennsylvania
corporation who at all relevant times hereto is engaged in the
business of a bar/restaurant located at 1710 Centerville Road,
Newville, Cumberland County, Pennsylvania 17241.
2. Plaintiffs Gregory A. Scott and Linda A. Scott, husband
and wife, are adult individuals, citizens of Pennsylvania, and the
officers and sole shareholders of Scott's pine Tree Inn, Inc.
. -
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3. The Defendant Erie Insurance Exchange is, and at all
relevant times was, authorized under the laws of Pennsylvania to
engage in the business of insurance, with a mailing address of Box
1699, Erie, Pennsylvania 16530.
4. Defendant Donald G. Weitzel, Sr. is an adult individual
and at all relevant times was an insurance agent, license number
AA7636, authorized under the laws of Pennsylvania to sell
insurance, with a principal place of business at 3117 Chestnut
Street, Camp Hill, Pennsylvania 17011. At all relevant times,
Defendant Donald G. Weitzel, Sr. traded or did business as Weitzel
Insurance Agency.
5. At all relevant time periods up to January 1, 1998,
Defendant Weitzel Insurance Agency is believed and therefore
averred to have been a sole proprietorship of Defendant Donald G.
Weitzel, Sr.
6. Defendant Donald G. Weitzel, Jr. is adult individual with
a business address of 3117 Chestnut Street, Camp Hill, Pennsylvania
1701l.
7. At all relevant time periods, Defendant Donald G.
Weitzel, Jr. was acting as the agent, servant, or employee of
Defendant Weitzel Insurance Agency.
8. In the alternative, at all relevant time periods,
Defendant Donald G. Weitzel, Jr. held himself out to the public as
an agent, servant or employee of Defendant Wei tzel Insurance Agency
2
and was therefore acting as the ostensible agent of Defendant
Weitzel Insurance Agency.
9. At all relative times hereto, Defendant Donald G. Weitzel,
Jr. was acting as the agent, servant, or employee of Defendant Erie
Insurance Group and Defendant Erie Insurance Exchange.
10. At all relevant time periods, Defendants Donald G.
Weitzel, Sr., Donald G. Weitzel, Jr. and Weitzel Insurance Agency
had authority to issue binders and otherwise bind Defendants Erie
Insurance Group and Erie Insurance Exchange in matters of coverage.
11. In the alternative, at all relevant time periods,
Defendants Donald G. Weitzel, Sr., Donald G. Weitzel, Jr. and
Weitzel Insurance Agency held themselves out to the pUblic as
having the authority to issue binders and otherwise bind Defendants
Erie Insurance Group and Erie Insurance Exchange in matters of
coverage. The Defendants Donald G. Weitzel, Sr., Donald G.
Weitzel, Jr. and Weitzel Insurance Agency were therefore acting as
the ostensible agents of Defendants Erie Insurance Group and Erie
Insurance Exchange.
12. Defendant Donald G. Weitzel, Sr., is and at all relevant
times was, an authorized agent of Erie Insurance Group and/or Erie
Insurance Exchange, and was acting within the scope of his agency
and employment and with the permission and consent of Defendants
Erie Insurance Group and/or Erie Insurance Exchange.
13. At all relevant times, Donald G. Weitzel, Sr. and the
Weitzel Insurance Agency held themselves out to the pUblic as
3
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agents or servants of Defendant Erie Insurance Group and/or
Defendant Erie Insurance Exchange. Defendants Weitzel and Weitzel
Insurance Agency at all relevant times were therefore acting as the
ostensible agents of Defendant Erie Insurance Group and/or
Defendant Erie Insurance Exchange.
14. Defendant Weitzel Insurance Agency is, and at all
relevant times was, an insurance agency authorized under the laws
of Pennsylvania to engage in the business of insurance, with a
business address of 3117 Chestnut Street, Camp Hill, Pennsylvania
17011.
15. Defendant Weitzel Insurance Agency is, and at all
relevant times was, an authorized agency of Erie Insurance Group
and/or Erie Insurance EXChange, and was acting within the scope of
its agency and employment and with the permission and consent of
Defendants Erie Insurance Group and/or Erie Insurance EXChange.
16. Defendant Donald G. Weitzel, Sr., is, and at all relevant
times was, president and/or principal of WeitzEl Insurance Agency,
and was acting within the scope of his employment and with the
permission and consent of Weitzel Insurance Agency.
17. Defendant Donald G. Weitzel, Jr. was at all relevant
times acting within the scope of his employment and with the
permission and consent of Defendant Weitzel Insurance Agency.
18. On or about March 25, 1996, Plaintiffs Gregory A. Scott
and Linda A. Scott entered into an Installment Sales Agreement with
Harlan J. Kahler and Jean 11. Kahler to purchase the bar/restaurant
4
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business and premises known as the "Pine Tree Inn" located at 1710
Centerville Road, Newville, Pennsylvania 17241.
19. After entering into the Installment Sales Agreement to
purchase the Pine Tree Inn, Plaintiffs Gregory A. Scott and Linda
A. Scott on behalf of themselves and their corporation, Scott's
Pine Tree Inn, Inc., met with Defendant Donald G. Weitzel, Jr. for
purposes of obtaining proper insurance to cover the interests of
Plaintiffs as well as any mortgagees and lienholders.
20. Plantiffs Gregory A. Scott and Linda A. Scott were not
knowledgeable about insurance matters and relied completely upon
the expertise of Donald G. Weitzel, Jr. to obtain proper insurance
coverage to protect the Plaintiffs as well as their mortgagees and
lienholders against risk of loss from fire.
21. Plaintiffs relied completely upon the expertise of
Defendant Donald G. Weitzel, Jr. in selecting the types of coverage
and amounts of coverage that were necessary to properly insure the
Plantiffs and their mortgagees and lienholders from any losses.
22. On or about June 11, 1996, Erie Insurance Group and/or
Erie Insurance Exchange through its agent(s) and employee(s),
Donald G. Weitzel, Sr., Donald G. Weitzel, Jr. and Weitzel
Insurance Agency, issued an insurance Binder to the Scotts and
Scott's Pine Tree Inn, Inc., for valuable consideration thereof,
insuring the pine Tree Inn from the loss of fire to the extent of
$328,500.00 for loss of building, and $150,000.00 for loss of
5
. ," ',' ,.', '. \, . " '".'.': . . ." ':.' '-'. ""
contents. The Binder was effective June 13, 1996, through June 13,
1997.
23. The Binder identified Harlan Kahler and Jean Kahler as
"Mortgagee or Lienholder."
24. On or about June 13, 1996, Erie Insurance Group, and/or
Erie Insurance Exchange, through its agent (s) and employee (5) ,
Donald G. Weitzel, Sr., Donald G. Weitzel, Jr. and Weitzel
Insurance Agency issued Erie Insurance Exchange Ultraflex Policy
Q421350221 H (the "Policy"), effective through June 13, 1997.
25. Prior to June 11, 1996, Defendant Donald G. Weitzel, Jr.
understood that the sale of the Pine Tree Inn from the Kahlers to
the Scotts was being done via an Installment Sales Agreement as set
forth above.
26. Prior to June 11, 1996, Defendant Donald G. Weitzel, Jr.,
acting as the agent, servant, employee or the extended agent of all
other Defendants, had an actual understanding that the Kahlers were
remaining as the titled owners of the property and had not
delivered a deed to the Scotts.
27. With this knowledge and understanding of the nature of
the transaction, Defendants Donald G. Weitzel, Sr., Donald G.
Weitzel, Jr. and Defendant Weitzel Insurance Agency placed the
Kahler's as first mortgagee on the policy.
28. Defendant Erie Insurance Group and/or Defendant Erie
Insurance Exchange accepted the application and issued the policy
listing the Kahlers as mortgagees.
6
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29. The Plaintiffs relied on the actions of all the
Defendants who consistently represented to the Scotts that all
interests were being protected.
30. On or about December 16, 1996, Erie Insurance Group
and/or Erie Insurance Exchange, through its agent(s) and
employee(s), Donald G. Weitzel, Sr., Donald G. Weitzel, Jr. and
Weitzel Insurance Agency, issued an Amended Declarations document
identifying the Kahlers as mortgagees under the Policy.
31. On or about June 13, 1997, Erie Insurance Group and/or
Erie Insurance Exchange, through its agent(s) and employee(s),
Donald G. Weitzel, Sr. and Weitzel Insurance Agency, issued a
Renewal Certificate to the Plantiffs for the POlicy, providing the
following amounts of coverage: $335,500.00 for buildings;
$150,000.00 for business personal property and personal property of
others; and $60,000.00 for income protection.
32. On or about August 11, 1997, a fire consumed the Pine
Tree Inn, resulting in a total loss to the building and business
equipment, which losses exceeded the insurance limits of the Policy
issued by Defendant Erie Insurance Exchange.
33. The Plaintiffs notified Erie Insurance Exchange of the
loss, submitted proof of loss, and performed all conditions
precedent required of the insurance policy identified above.
34. The Kahlers also notified Eric Insurance Exchange of the
loss, submitted their own proof of loss and performed all
conditions precedent required of the insurance policy.
7
. ' . .,: . . , . ' , . .!. : ", - _ ~ ", . ,.,' 'to . ~ ,
35. On or about April 2, 1998, Erie Insurance Exchange
notified the Plaintiffs that they were denying liability under the
insurance policy.
36. On or about September 18, 1998, Erie Insurance Exchange
notified the Kahlers that they were denying liability to them under
the policy of insurance.
COUNT I
BREACH OF CONTRACT
SCOTT'S PINE TREE INN. INC.. GREGORY A. SCOTT
AND LINDA A. SCOTT v. ERIE INSURANCE EXCHANGE
37. Paragraphs 1 through 36 are incorporated herein by
reference, as if set forth in their entirety.
38. At all times relevant hereto, Defendant Erie Insurance
Exchange knew that Plaintiffs were relying upon Defendant to make
payments to Harlan Kahler and Jean Kahler in the event that there
was a loss of the pine Tree Inn.
39. Defendant Erie Insurance Exchange's stated reason for
failing to make payment to the Kahlers is not supported by
Pennsylvania law.
40. In failing to perform its obligations under Erie
Insurance Exchange Ultraflex Policy Q421350221 H, Defendant Erie
Insurance Exchange breached its contractual undertakings and
obligations to Plaintiffs by failing to make payment to the Kahlers
in a prompt and reasonable manner.
8
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41. Defendant Erie Insurance Exchange took the position that
the Kahlers were not mortgagees despite the understanding of their
agent to the contrary.
42. Defendant Erie Insurance Exchange had actual or
constructive notice through their agents, servants, or employees
that the Kahlers had retained the deed to the property.
43. Defendant Erie Insurance Exchange never notified the
Kahlers or the Plaintiffs of their position that the Kahlers could
not be mortgagees since they had retained the deed.
44. As a result of Defendant Erie Insurance Exchange'S
failure to properly perform their obligations owing to both the
Plaintiffs and to the Kahlers, Plaintiff Scott's Pine Tree Inn,
Inc. was forced to file for protection under the bankruptcy laws of
the United States.
45. As a result of Defendant Erie Insurance Exchange's
failure to perform their obligations under the policy of insurance
that were owing to b0th the Plaintiffs and to the Kahlers, Gregory
A. Scott and Linda A. Scott have been damaged and have sustained
great injury to both their finances, reputation and standing in the
community.
WHEREFORE, Plaintiffs demand jUdgment against the Defendants
in an amount in excess of THIRTY-FIVE THOUSAND ($35,000.00)
DOLLARS, together with interest, costs, and attorney's fees.
9
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COUNT II
BREACH OF CONTRACT
SCOTT'S PINE TREE INN. INC.. GREGORY A. SCOTT
AND LINDA A. SCOTT v. ERIE INSURANCE EXCHANGE
46. Paragraphs 1 through 45 are incorporated herein by
reference, as if set forth in their entirety.
47. At all times relevant hereto, Defendant Erie Insurance
Exchange knew that Plaintiffs were relying upon Defendant to
adequately cover Plaintiffs for any losses that may be sustained in
the event that there was a destruction of the pine Tree Inn.
48. Defendant Erie Insurance Exchange's stated reasons for
failing to make failing to make payment to the Plaintiffs is not
supported by the facts or by Pennsylvania law.
49. In failing to perform its obligations under Erie
Insurance Exchange Ultraflex Policy Q421350221 H, Defendant Erie
Insurance Exchange breached its contractual undertakings and
obligations to Plaintiffs by failing to make payment to the
Plaintiffs in a prompt and reasonable manner.
50. As a result of Defendant Erie Insurance Exchange's
failure to properly perform its obligations owing to the
Plaintiffs, Plaintiff Scott's pine Tree Inn, Inc. was forced to
file for protection under the bankruptcy laws of the United States.
51. As a result of Defendant Erie Insurance Exchange's
failure to perform their obligations under the policy of insurance
that were owing to the Plaintiffs, Gregory A. Scott and Linda A.
10
Scott have been damaged and have sustained great injury to both
their finances, reputation and standing in the community.
WHEREFORE, Plaintiffs demand jUdgment against the Defendants
in an amount in excess of THIRTY-FIVE THOUSAND ($35,000.00)
DOLLARS, together with interest, costs, and attorney's fees.
COUNT III
MISREPRESENTATION
SCOTT'S PINE TREE INN. INC.. GREGORY A. SCOTT
AND LINDA A. SCOTT v. DONALD G. WEITZEL, JR..
DONALD G. WEITZEL, SR.. WEITZEL INSURANCE AGENCY,
ERIE INSURANCE GROUP.AND ERIE INSURANCE EXCHANGE
52. Paragraphs 1 through 51 are incorporated herein by
reference, as if set forth in their entirety.
53. The Plaintiffs reasonably relied upon Defendants'
representations, due to Defendants' perceived professionalism,
experience and expertise in insurance contracts, and were induced
into believing that their interests were fully Covered by the
policy of insurance issued by Erie Insurance Exchange.
54. Defendants intentionally or negligently misrepresented
the extent of coverage provided under the policy of insurance
issued by Erie Insurance Exchange.
55. Defendants represented to the Plaintiffs that they had
full and adequate insurance to cover any losses that would occur as
a result of the total destruction of the Inn when they knew, or
should have known, that the coverage was less than adequate to
Cover all of the Plaintiffs' losses.
11
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60. Plaintiffs have sustained losses and damages due to the
negligence of the Defendants Donald G. Weitzel, Jr., Donald G.
Weitzel, Sr., and Weitzel Insurance Agency in that they:
a. Failed to obtain proper insurance coverage for the
Plaintiffs' potential losses;
b. Failed to obtain an adequate amount of insurance coverage
to cover the Plantiffs' potential losses;
c. Failed to properly evaluate the Plaintiffs' insurance
needs;
d. Failed to properly cover the interests of the Kahlers in
the property so as to protect the Plaintiffs from claims
by the Kahlers.
61. Plaintiffs have sustained losses due to the negligence of
the Defendant Erie Insurance Exchange in that it:
a. Was liable for the acts of its agents as set forth in
paragraph 60;
b. Failed to see that its agents issued a proper insurance
policy with adequate coverage to cover the Plaintiffs'
losses;
c. Failed to properly supervise their agents;
d. Failed to promptly pay all mortgage or lienholders,
including the Kahlers, when such monies were immediately
13
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due and owing, resulting in the necessity for Scott's
Pine Tree Inn, Inc. to file for bankruptcy protection;
e. Negligently investigated the potential causes or origin
of the fire;
f. Failed to make a complete investigation of persons having
a motive to commit arson.
WHEREFORE, Plaintiffs demand jUdgment against the Defendants
in an amount in excess of THIRTY-FIVE THOUSAND ($35,000.00)
DOLLARS, together with interests, costs and attorney's fees.
COUNT V
BAD FAITH VIOLATION OF 42 Pa. C.B.A. ~8371
SCOTT'S PINE TREE INN. INC.. GREGORY A. SCOTT
AND LINDA A. SCOTT v. DONALD G. WEITZEL. JR..
DONALD G. WEITZEL. SR.. WEITZEL INSURANCE AGENCY.
ERIE INSURANCE GROUP.AND ERIE INSURANCE EXCHANGE
62. The averments of paragraphs 1 through 61 are incorporated
herein by reference.
63. Defendants in their handling of Plaintiffs' claims, as
set forth above, as well as their denial of Plaintiffs' claims,
constitutes a bad faith violation of 42 Pa. C.S.A. S8371 entitling
Plaintiffs to punitive damages and attorney's fees.
64. The denial of the Kahlers' claims set forth above, and
its foreseeable damages to the Plaintiffs, constitutes a bad faith
14
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violation of 42 Pa. C.S.A. ~8371 entitling Plaintiffs to punitive
damages and attorney's fees.
WHEREFORE, Plaintiffs demand judgment against the Defendants
in an amount in excess of THIRTY-FIVE THOUSAND ($35,000.00)
DOLLARS, together with interests, costs and attorney's fees.
COUNT VI
GREGORY SCOTT AND LINDA SCOTT v.
ERIE INSURANCE EXCHANGE
65. The averments of paragraphs 1 through 64 are hereby
incorporated by reference.
66. Upon informatio and belief, Plaintiffs aver that
Defendant acting through its agents, servants and employees have
maliciously circulated writings which have libeled the Plaintiffs
by accusing them of committing a crime, which Defendant knew, or
should have known, to be untrue.
WHEREFORE, Plaintiffs demand judgment against the Defendants
in an amount in excess of THIRTY-FIVE THOUSAND ($35,000.00)
DOLLARS, together with interests, costs and attorney's fees.
Respectfully submitted,
WIX, WENGER & \~EIDNER
By
r{"'),,,\, /./ L>;;
Richard H. Wix, Esq., ID# 07274
Attorneys for Plaintiffs
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
. '. " ' , '"'. . ,...,' -:', ... . ,", ' ", " " " , '1,: -~, '. ',' ,'. -, " " .".. ' ' '. . ~ .
Dated:
\ .
15
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Richard H. Wix, Esquire
-._-~.
VERIFICATION
I, Richard H. Wix, Esquire, attorney for the Plaintiffs in
this matter, verify that the statements made in the foregoing
Amended Complaint are true and correct to the best of my knowledge,
information and belief.
The undersigned understands that his
statements therein are made subject to the penalties of 18
Pa.C.S.A. Section 4904 relating to unsworn falsification to
authorities.
<
Dated:
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WIX, WENGER & WEIDNER
CERTIFICATE OF SERVICE
Esquire, of the firm of Wix, Wenger & Weidner, attorneys for
AND NOW, this 18th day of JUly, 2000, I, Richard H. Wix,
Plaintiffs, hereby certify that I served the within Amended
Complaint this date by depositing a copy of same in the United
states mail, postage prepaid, in Harrisburg, PennsYlvania,
addressed as follows:
Madeline Caprioli, Esquire
Cozen and O'Connor
The Atrium
1900 Market Street
Philadelphia, PA 19103
George B. Faller, Jr., Esquire
Martson Deardorff Williams & Otto
Ten East High Street
Carlisle, PA 17013
--) .
By ;\,,' i.:'\.1 ! ~ I",,;
Richard H. Wix, I.D. #07274
Attorneys for Plaintiffs
4705 DUke Street
Harrisburg, PA 17109-3099
(717) 652-8455
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CIV. ACTION NO. 98-~ ~
(
OF
SCOTT'S PINE TREE INN, INC.
Plaintiff,
(
v.
ERIE INSURANCE EXCHANGE
Defendant.
,
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fk !"1U#I )
JURY TRIAL DEMANDED
SCOTT'S PINE TREE I~~, INC. and
GREGORY A..... SCOTT and LINDA A.
SCOTT,
Plaintiffs,
CIV. ACTION NO. 99-4857
v.
DONALD G. WEITZEL, JR.,
DONALD G. WEITZEL, SR., WEITZEL
INSURANCE AGENCY AND ERIE
INSURANCE EXCHANGE
Defendants.
JURY TRIAL DEMANDED
DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM
TO THE AMENDED COMPLAINT FILED BY
SCOTT'S PINE TREE INN, INC. Atrn GREGORY AND LINDA SCOTT
AND NOW, the Defendants, Erie Insurance Exchange,'
\':'.'It:':cJ Insurance Agency, Donald G. vleitzel, 81'. and Donald G.
PUJ'l311,1I1t to th(. Bono)-able George E. l1of[(.1"13 June 28, 20000rdcl-
(j'cidJ;)q lJl~f('ndi]nt::' P]'c'JirnillC\l"Y ObjectiolH, f.iled to the Plaintiffs'
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
SCOTT'S PINE TREE INN, INC.,
Plaintiff
CIVIL ACTION NO. 98-7325
v.
ERIE INSURANCE EXCHANGE,
Defendant
JURY TRIAL DEMANDED
SCOTT'S PINE TREE INN, INC. and
GREGORY A. SCOTT and LINDA A.
SCOTT,
Plaintiffs :
CIVIL ACTION NO. 99-4857
v.
DONALD G. WEITZEL, JR.,
DONALD G. WEITZEL, SR., WEITZEL
INSURANCE AGENCY, ERIE INSURANCE
GROUP AND ERIE INSURANCE EXCHANGE,
Defendants
JURY TRIAL DEMANDED
PLAINTIFFS' RESPONSE TO
DEFENDANTS' NEW MATTER AND COUNTERCLAIM
AND NOW come the Plaintiffs, Scott's pine Tree Inn, Inc.,
Gregory A. Scott and Linda A. Scott, by their attorneys, Wix,
Wenger & Weidner and set forth the following Answer to Defendants'
New Matter and Counterclaim.
67. Denied.
68. Denied.
69. Denied.
70. Denied.
71. Denied.
72. Denied.
73. Denied.
74. No answer is required.
75. Denied.
76. Denied.
77. Denied.
78. Denied.
79. Denied.
80. Denied.
81. Denied.
82. Admitted.
83. Denied.
84. Denied.
85. Denied.
86. Admitted.
87. Denied.
88. Admitted.
89. Denied.
90. Admitted.
91. Denied.
92. Admitted.
93. Denied.
94. Denied.
2
95. Denied.
96. Denied.
97. Denied.
98. Denied.
99. Denied.
100. Denied.
101. Denied.
102. Denied.
103. Denied.
104. Denied.
105. Denied.
106. Denied.
107. Denied.
108. Denied.
109. Denied.
110. Denied.
111. Admitted.
112. Denied.
113. Denied.
114. Denied.
115. Denied.
116. Denied.
117. Denied.
3
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118. Denied.
119. Denied.
120. Denied.
121- Denied.
122. Denied.
123. Denied.
124. Denied.
125. Denied.
126. Denied.
127. Denied.
128. Denied.
129. Denied.
130. Denied.
131- Denied.
132. Denied.
133. Denied.
134. Denied.
135. Denied.
136. Denied.
137. Denied.
138. Denied.
139. Denied.
140. Denied.
4
141. Denied.
142. Denied.
143. Denied.
144. Denied.
145. Denied.
146. Denied.
147. Denied.
148. Denied.
149. Denied.
150. Admitted.
151. Denied.
152. Denied.
WHEREFORE, Plaintiffs demand judgment against the Defendants,
together with the interest, costs and attorney's fees.
COUNTERCLAIM
153. Denied.
154. Admitted.
155. The sales agreement speaks for itself .
156. Admitted.
157. Admitted.
158. Denied.
159. Admitted.
160. Admitted.
5
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161. Denied.
162. Denied.
163. Denied.
164. It is admitted that the Kahlers obtained a judgment
against the Plaintiffs due to Defendants' wrongful refusal to pay
the Kahlers for the loss caused by the fire.
165. It is admi.tted that the Pi.ne Tree Inn suffered damage
from a fire, however, Plaintiffs are without knowledge as to the
cause of the fire.
166. It is admitted that Erie Insurance Exchange commenced an
investigation, however, it is denied that it was a comprehensive
investigation since Erie wrongfully withheld payments which it
knew, or should have known, that it owed both to the Plaintiffs and
to Mr. & Mrs. Kahler.
167. Admitted.
168. Admitted.
169. Denied.
17 O. Admitted.
171. It is admitted that Erie denied the Plaintiffs' claims,
it is denied that they had a legal basis to do so.
172. It is admitted that the Kahlers made a claim, the exact
details of which are unknown to the Plaintiffs.
6
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173. It is admitted that Erie rejected the Kahlers' claims,
the basis of which is unknown to the Plaintiffs.
174. Denied.
175. Admitted.
176. Denied.
177. Admitted.
178. Admitted.
179. Admitted.
180. It is admitted as
Inc. filed for bankruptcy.
to the date that Scott's pine Tree Inn,
The remaining averments are denied.
181. Denied.
182. Denied.
183. Denied as stated.
184. Denied as stated.
185. It is admitted that one reason for filing for bankruptcy
was to prevent anyone from proceeding against the assets of the
Inn.
186. Denied.
187. Denied as stated.
188. Denied as stated.
189. Denied as stated.
190. Admitted.
191. Admitted.
7
192. Admitted.
193. The terms of the settlement agreement and release speaks
for itself.
194. Admitted.
195. Denied.
196. Denied.
197. Plaintiffs incorporate herein by reference their answers
to the allegations set forth in Defendants' Reply to New Matter and
Counterclaim.
198. It is denied that Plaintiffs caused the fire or had
motive to do so.
199. Denied.
200. Denied.
201. Denied.
202. Denied.
203. Plaintiffs incorporate herein by reference their answers
to paragraphs 1 through 189.
204. Plaintiffs incorporate herein by reference their answers
to the paragraphs raised in Defendants' New Matter.
205. Denied.
206. Denied.
207. Denied.
208. Denied.
8
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209. Denied.
210. Plaintiffs incorporate herein by reference their answers
to paragraphs 1 through 196.
211. Denied.
212. Denied.
213. Denied.
214. Denied.
215. Denied.
216. Plaintiffs incorporate herein by reference their answers
to paragraphs 1 through 202.
217. Admitted that Erie made payment to Orrstown Bank, it is
denied that they were the only mortgagee.
218. Admitted.
219. Denied.
220. The settlement agreement speaks for itself.
2 21. Admitted.
222. Denied.
223. It is denied that Erie properly denied the claim of
Plaintiffs.
224. Denied.
225. Denied.
226. Plaintiffs incorporate herein by reference their answers
to paragraphs 1 through 212.
9
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227. Admitted.
228. Denied.
229. Denied
230. Denied.
WHEREFORE, Plaintiffs request your Honorable Court to dismiss
Defendants' Counterclaim.
Respectfully submitted,
WIX, WENGER & WEIDNER
Dated:
L/ /, 1"1
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By ,.I ,,'"'-1 ~( , \ , :.q
Richard H. Wix, Esq., ID# 07274
Attorneys for Plaintiffs
4705 DUke Street
Harrisburg, PA 17109-3099
(717) 652-8455
10
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CERTIFICATE OF SERVICE
AND NOW, this 2nd day of April, 2001, I, Richard H. Wix,
Esquire, of the firm of Wix, Wenger & Weidner, attorneys for
Plaintiffs, hereby certify that I served the within Plaintiffs'
Response to Defendants' New Matter and Counterclaim this date by
depositing a copy of same in the United states mail, postage
prepaid, in Harrisburg, Pennsylvania, addressed as follows:
Michael F. Henry, Esquire
COZEN AND O'CONNOR
The Atrium
1900 Market street
Philadelphia, PA 19103
WIX, WENGER & WEIDNER
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Richard H. Wix, Esq., I.D. #07274
Attorneys for Plaintiffs
1705 Duke stree't
Harrisburg, PA 17109-3099
(717) 652-8455
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
HARLAN J. KAHLER,
JEAN H. KAHLER, Husband and Wife,
Plaintiffs
v,
CIVIL ACTION NO. 98-6007
ERIE INSURANCE GROUP,
ERIE INSURANCE EXCHANGE and
WEITZEL INSURANCE AGENCY,
DONALD S. WEITZEL and
DONALD S. WEITZEL. JR.,
Defendants
JURY TRIAL DEMANDED
SCOTT'S PINE TREE INN, INC.,
Plaintiff
CIVIL ACTION NO. 98-7325
/
v.
ERIE INSURANCE EXCHANGE,
Defendant
JURY TRIAL DEMANDED
SCOTT'S PINE TREE INN, INC. and
GREGORY A. SCOTT and LINDA A.
SCOTT,
CIVIL ACTION NO. 99-4857
Plain~jffs
v.
DONALD G. WEITZEL, JR.,
DONALD G. WEITZEL. SR., WEITZEL
INSURANCE AGENCY. ERIE INSURANCE
GROUP AND ERIE INSURANCE EXCHANGE, :
Defendants
JURY TRIAL DEMANDED
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PRAECIPE
TO THE PROTHONOTARY:
Please mark the above-captioned matter settled and discontinued.
Respectfully submitted,
WIX, WENGER & WEIDNER
B~\1~ J-J<~
Richard H. Wix, Esq., 10# 07274
Attorneys for Plaintiffs Scott
4705 Duke Street
Harrisburg, PA 17109-3099
(717) 652-8455
Dated: 4/14/03
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