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HomeMy WebLinkAbout01-1188 FX - .-- , ' _ ~_ " . _ _,J , _ ;- ."",,. h ~ " . - ; ~ rj~! Jesse Raymond Ruhl, Esquire PA Atty. No.: 55798 36 S. Hanover Sl:reet P.O. Box 1319 Carlisle, PA 17013 (717)241-4813 (71?) 241-4829 (fax) MilLERS MUTUAL INSURANCE COMPANY, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ! CIVIL ACTION - LAW v. CABLE & ASSOCIATES INSURANCE AGENCY, INC. ;NO.O/- /IW ~Ivd Defendant. ............ .................................. ...., NOTICE TO DEFEND YOU HAVE BEEN SUED IN COU*T. If you wish to defend against the claims set forth in the following pages, you m~st 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 vyarned that if you fail to do so the case may proceed without you and a judgment mjay be entered against you by the Court without further notice for any money cl]aimed 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 THISIPAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR C,4.NNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH ~ELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse Fourth Floor Carlisle, PA 17013 (717) 240-6200 ';.~'-~ ., - :' ,'J "I AVISO , USTED HA SIDE DEMANqADO/A EN CORTE. Si usted desea defenderse de las demandas que se prelsentan mas adelante en las siguientes paginas, debe tomar accion dentro de I~s proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso r~dicando personalmente 0 par medio de un , abogado una comparecencia escrita y r~dicando en la Corte por escrito sus defensas de, y objecciones a, las demardas presentadas aqui en contra suva. Se Ie advierte de que si usted fall a de tomar ?ccion como se describe anteriormente, el caso puede proceder sin usted y un fallb por cualquier suma de dinero reclamada en la demanda 0 cualquier otra reclamaciorn 0 remedio solicitado por el demandante puede ser dictado en contra suva par lai Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos importantes para usted. USTED DEBE LLEV AR ES~E DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VAYA A LA SIGUIENT~ OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEG~L. Court Administrator Cumberland ~ounty Courthouse Foyrth Floor Carlisl~, PA 17013 (717) 240-6200 i , '" " j ~ . '.'r: Jesse Raymond Ruhl Attorney J.D. No. 55798 36 S. Hanover Street p.o, Box 1319 Carlisle, P A 17013 (717)241-4813 MILLERS MUTUAL INSURANCE COMPANY, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : CIVIL ACTION - LAW v, CABLE & ASSOCIATES INSURANCE AGENCY, INC. 0/- I/?t Cu;;.J-{~ :NO, Defendant. ..........................................CD.~~N~t ~ NOW COMES Plaintiff Millers-Mutuat lnsurance Company, by and through its attomey, Jesse Raymond Ruhl, and files the within Complaint as follows: I. Millers Mutual Insurance Company (hereinafter "MMIC") is a mutual insurance company licensed to engage in the business of providing insurance to Pennsylvania residents and businesses with a principal place of business located at 805 North Front Street, Harrisburg, P A 1710 1. 2. Defendant Cable and Associates Insurance Agency, Inc, is a Pennsylvania corporation with a registered place of business located at Murry Corporate Park, 1036 Corporate Drive, Export, PA 15632. 3. To market its insurance business, MMIC engages the services of agents to sell the .',,'"~' ,. ~" " ~o " '~h'_W"~~-. insurance product to residents and businesses. 4. Agents sell the insurance product, collect the premiums and remit the premiums to MMIC pursuant to their agreement with MMIC. 5. Defendant was an agent ofMMIC. 6. MMIC and the Defendant entered into an agency contract whereby Defendant promised to pay to MMIC all premiums accruing on the insurance written under the contract. A true and correct copies of the agency agreement is attached hereto as Exhibit "A" and incorporated herein by reference. 7. The Defendant agreed that all premiums received by the Defendants would be held for MMIC by the Defendant as trustee for MMIC until such time as the premiums were delivered to MMIC, 8. Despite this agreement, Defendant received premiums totaling $6,607,79 which premiums were due to be paid to MMIC, and, despite demand therefore, Defendant has failed to pay to MMIC the premiums totaling $6,607,79. 9. Defendant has breached the terms of the agency agreement by failing to remit the 2 ~ ~ . '" , .....i=.. ,~ .'q.'; premiums totaling $6,607.79 to MMIC. 10. MMIC has been damaged in the amount of $6,607.79 as a result ofthe Defendant's breach of the agency agreement. WHEREFORE Plaintiff Millers Mutual Insurance Company demands judgment in its favor and against Defendant in the amount of $6,607.79, plus intere d , Esquire ey ill No. 55798 36 S. H over Street P.O. B x 1319 Carlisle, PA 17013 (717) 241-4813 Attorney for the Plaintiff \\Pc3\firm files\documents\Cable & Assoc (MMIC v.)\complaint.wpd 3 "~' ~~ ". . ';'-"'''-jaif''''" 1Jt'Lil,!:::~~;;'!:--i VERIFICATION Jesse Ruhl deposes and says, subject to the provisions of 42 Pa.C.S.A. Section 4104 relating to unsworn falsification to authorities, that he is the attorney for the Plaintiff, Millers Mutual Insurance Company, and that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief. ".." no' ., "" ,<.." "." ",'~ ",~~ 1 AGENCY AGREEMENT mIS AGREEME\T made this First day of January AD. 1999 by and between r.Rhlp & Jl-c;sidates oJ.. M 'Y'l"'Y~vi 11 A in tbe Coun(l' of Wesilroreland and State of Pennsylvania hereinafter designated as J1gent; and MIllERS ML WAL INSURAN CE COMPANY a corporation du(l' organized and existing under and by virtue of the laus of the State of Pennsylvania and having its principal offu.:e in the City of Harrisburg and State of Pennsylvania bereinafter designated as 'Company" WITNESSElli THA T. Pursuant to a reljllest Ihal the zmd~l1>ritiilgfaci:i:ies .lthe Com:iany be ndde auailable to tbe widersigned as Agent, the Company here~l' grants authori(1' to the Agent to receive ana accepl proposals for such cc,n1racts of insurance as the Company has authori(l' lawfulll' to make; subject. houl(!lJ( Y, to restrictions placed upon such Agent ~l' the laus of the State or States in which such Agent is authorized to u>rite insurance business and to the terms and conditiom hereinafter set forth. 1. AlJ7HORIfY. The Agelll has full poUf!T and authori(l' to receil'e and accept proposals for insurance covering such classes of risks as the Company may,from time to time. authorize to be insured, subject to the Underu.>ritillg Guide- lines contained in the Agency Manual and/or subsequent revisions. 2. NOTIEICATION. The Company is to be notifwd of each binder. endors~ent, application or certifu.:ate immediate(1' upon execution. but, in no event. later than three (3) business da,ls follouing execution of the document. 3. RFMllTANCE OF PREMILJf. AgellI is giz'I!11 authori(l'to collect and receit'!' premium in accordance with the following guidelines: (A) Agencl' Account Current. (Commmial Accounts onll'). The Agent agrees to pay to the Company all premiums accruing on insurance written under this Ag~t WHElliER OR NOT COllECIED BY mE AGENf' FROM THE INSURED except as ap- plies to 3/B.). The Agent agrees that all premiums received by the Agent shall be heid by th~ as Trustee for the Company until delit'ered to it and tbe privilege, if granted, of taking commission from tbe premium shall not be constnted as changing the relationship of the respected parties hereto. The Agent agrees that the Company sball be paid not later than 45 days after the end of the month for which the account is rendered. If Agent fails to pay when due any monlry owed 10 the Company under the terms of applicable billing procedures, the Company may by written notice to the Agent immediate(v suspend, or modify, any of the provisions of this Ag~t, or terminate this Agree- ment, or Agent S authori~v, to whalet<er extent the Company may elect. The Agent is authorized to retain out of premiums so collected as full compensation on business so placed with the Company, commissions in accordance witb the Companys scbedule of commiss- ions as may, from time to time, be promulgated. If an Agent has succeeded to, or carries on an Agencyformerly owned, or conducted ~l' anotber, the Agency shall pay return commission on return premiums on such business in the same manner and to the same extetll as upon it S own business unless tbe parties have specifical(1' otberuise agreed and the u>ritten coment of the Company tosucb an ag~ent has been endorsed bereon. Page 1 ., - ,. .,'- '.' _I' ",~""i'.l'<~':j (B,J Direct Bill. Direct Bill Accounts uill be administered as folious: (I) Agent shall submit all applications prompt(\' u~th the initial gross premium, or required dou'll payment, u~thout deduction of commission. (II) Agent name will appear on notices transmitted to Policvholders and copies of same ui// be transmitted to Agent. . (III) All Direct Bill Payments should be trammitted from tbe Policyholder direct to the Com- pany. If any Direct Bill Payments are received by the Agency, notification and remil/ance must be made immediate(l' 10 the Company. (IV.) Agent is not authorized to deduct commissions on Direct Bill Policies. (V.) Direct Bill policies may not be premium financed. 4. AL'DIi' PROCEDURE. The Agent sball bat'!' tbe rigbtto relieffrom responsibili(l'for tbe collection of premiums dl!!'!'lopedfrom any CompallY interim or final audit, or t'Olzmta/)' report from an insured, subject to tbe follouing conditions.' (A,J Within 45 da)5 after receipt ~l' the Agent of allY Statement of Premiums developedfrom such audit, or report, and being unable to collect from the Poli~vholder after a reasonable attempt to do so. the Agent shall return same to the CompallY together uith uritten advice git'ing the reason tbe audit. or report, is uncollectible and that he desires relief from such respomibili()'. The Agent agrees to wait'!' commission on any Statement so returned and the Company shall baz'!' tbe right to collect such premiums in any manner it may elect. (B.) If Agent fails to return the Statement to the CompallY within the period specifzed in 4.r A.), the Agent shall be de~ed to hat'!' elected to retain responsibi/ityfor tbe payment of sucb premium to tbe Company. 5. AGE/vcr EXPENSES. Tbe Company shall not be respomible for agency expenses, such as, rentals, transportatioll facilities, clerk hire, solicitors 'jees, postage, adt'ertising, personal local license fees, adjustment by tbe Agent of losses under policies issued by the Agency, or any other agency expenses whatsoever, except as authorized ~\' the Com- pany in u>riting. 6. NO EMPLOYER-EMPLOYEE RELATIONSHIP. N otbing contained herein sball be construed to create the relationship of ~ployer and ~ployee betu~en the Company and tbe Agelll. and the Agent sball befreeto exercise it's our judgment as 10 the persons/rom whom it WIll solicit insurallce and the time und place oj solicitation. Agent is an independent contractor. 7. COMPANY PROPERTY. Any Company supplies furnished to the Agent by the Company sball alwa)5 remain the property of the Com- pany and shall be returned to the Company or its representatives prompt(v upon demand. 8. CANCFIlATION OF RISK. Nothing in this Ag~ent shall be comtrued as limiting or restricting the right of tbe Company to cancel any policy, or policies, or contracts of insurance, issued under this Ag~t, and the Company reserves the right to witbdraw authori(y from the Agent and to decline to accept any particular risk or classes of risk, in accotdallce with existing statuto/)' regulatiolls. 9. ADI'ERT1SING. The AgeIlt sball not insert any ad~'ertisements respecting the Company in any publications or issue any cir- cular or paper referring to the Company llithout the consent of the Compallyflrst obtained in writing. In case the Company shall be subjected to loss or expense arisingfrom sucb unauthorized action or state- ment of the Agen~\" the Agency shall be liable for all costs and damages arising tberefrom. Page 2 '-' _'e ~ ~ ~'" 10. EXPlRATIO.'" 01l7NERSHlP. In the .event of the termination of tbis Agre~ent. tbe .4gent not being in default and thereafter prompt()' ac- countmgfor and paymg balances not in default for which be may be liable, the Agent s record, use and control of expzratlOns shall be de~ed the property of the Agent and left in bis undisputed possession; other wzse the records, use and control of expirations shall be vested in tbe Company. 1I. COMPAlVY INDEMll/7FICATION. The Company sball indemnify and hold the Agent harmless against all cit'illiabili(V, including attomeJ~' fees and costs of investigation and defense illcident thereto, arising as a direct result of (A.) Company error or omission in tbe preparation, processing, handling or billing of Company-billed or any other business placed by the Agent with tbe Company. except to tbe extent that tbe Agent has caused sucb error; (8.) Company error or omission in tbe notifu.:ation to the Agent or the insured of policl' aggregate limits that hat'!' become subject to impairment; (C.) Actual or alleged failure oftbe insured to receive notice of cancellation or lion. renewal, or any other notice affecting cOt'erage, where such notices are sent direct(I' to the insured ~J' the Compan)~ rD.) Actual or alleged failure of the Company to compl)' with the requirements of the Fair Credit Report- ing Act. Federal Truth ill Lending Law. Fair Credit BWing Act.federal and state primC)' laus or any other lau' where tbe Ag~lt is using forms supplied~!' the Company, or follouing instruction or procedures established ~)' the Company. except to the extenttbat the Agent bas caused such failure; or (f) Anyotberaction or inaction of the Agent based upon tbe Agents useofforms supplied by the Com- pany, or follou~ng imtructions or procedures established ~)' tbe Company, except to the extent that the Agent has caused such failure. The Agent shall prompt(!' notify the Company when it receit'!'s notice of any claim or the commencement of any action relating to such liabilities, and the Company sball be entitled to participate in such action or to assume the defense of any such action. lf the Company assumes the defense of any such action, it sball not be liable to the Agent for any legal or other expenses subsequent(y incurred ~ the Agent in connectioll with such action unless tbe Company bas git/ffi its prior written approval of sucb expenses. The Company covenants and agrees u~th the Agent that the Company will not knowing(J' imtitute or prosec- cute or aid in the institution or prosecution of any sui!. claim demand, action or cause of action agaimttbe Agent whicb alleges tbe Agent is liable or which se<eks contribution or recOt'ery from the Agent for any action or inaction for which the Company has agreed to ind~llify and hold the Agent bam!less. N otu~fbstanding the aforegoing, Iwtbil;g contained in this paragraph shall operate to d('IlY tbe Company the right to deJend itself in any action against the Agent and/or againsttbe Agent and tbe Company. 12. AGENf'INDEMNIFlCATION. The Agent shall ind~nify and hold the Company harmless against all cil'il liabili(!" to tbe extent the Agent is lega/{y liable to tbe Company by law and including attorneys'fees and costs allowed~' law, arising as a direct result of (A.) Agent error or omission in the preparation, processing, or handling of business placed by the Agent with tbe Company, except to tbe extent that the Company bas caused such error,' (B.) Actual or alleged failure of the Agent to comp()' u~th the requirements of tbe Fair Credit Reporting Act, Federal Trutb in Lending Lau; Fair Credit BWing ActJederal or state primcy laus or any other lau; except to tbe extent that the Company has caused such failure, or,. (C.) An!' otber action or inaction of the Agent, including without limitation, improper use of the forms suPPlied ~J' the Company, or failure to follou' instructions or procedures established ~J' the Com- Page 3 - "j', :.' ~.d ,I'. ' .,11 ' ~'" , J " ,~ "'~"'""'" pan)'. except to tbe extent that the Company bas caused such error. In those cases where the Agent has agreed to ind~nif.'f' and hold the Company hannless. the Agent covenants and agrees u~tb the Company that the Agent u~1I not knou~ng(l' institute or prosecute or aid in the institution or prosecution of any suit. claim, demand, action or cause of action against the Company which alleges the Company is liable or which seeks contribution or recovery from the Company. ,.. otu~tb- standing the aforegoing, nothing contained in this paragrapb shall operate to deny the Agent the right to defend itself in any action against the Agent and/or against the Agent and the Company. 13 ARBrIRA TIO.\' . If any dispute or disagre~ent shall arise in connection with any interpretation of this Ag~ent, its perfor- mance or nonperformance. the parties shall make every effort 10 meet and settle their dispute in good faith informal(v. If the parties cannot agree on a written set/iement to tbe dispute within one year from the date the dispute arises. or u~thin a longer period agreed upon by the parties then the mat/er in contrwersy shall be set/led by arbitration in accordance witb tbe rules of tbe American Arbitration Association, and judg ment upon tbe award rendered by the arbitrator(s) mal' be entered in any court hat'ing jurisdiction. The parties jurtbf!1 agree tbat the i,~ of thIS Agreement sbll be co/!!,trued and intetpreted according to the laus of the Commonwealth of Penn~)'I!'ania. and that any Arbitration beld in connection uith this Agree- ment and tbis paragrapb sball occur in Harrisburg, Pennsylvania, The parties may agree to submit the dispute to one arbitrator; otheru'ise. there shall be three. one named in u<riting ~l' each parly uithin ten (10; da)~ after notice of arbitration is sen'ed ~)' either pari)' upon the other, and a tbird arbitrator selected h)' these two arbitrators u~tbin fifteen (15) days tbereafter. 1/ the arbiiraiors are unable /0 agree upon a third arbitrator, then the third arbitrator shall be chosell impartial(1' ~)' the American Arbityqtiotl ,4ssociatiotl. The detemlitlation of the arbiiraiorf~) ~ball be final ami binamg on all partiEs. prol'ided such determination is made in writing and signed by a majority of the arbitrarorfs). Wbere arbitration results in an award. such award shall include interest. attbe current C. S. Treasu1"I'''' ote Rate, per annum runningfrom tbe date when the amount that is the subject of the award first came ilue. The costs of arbitration shall be borne equal/)' by the parties 14. PREl'/OUS AGREH1E!1TS. This Ag~f!1lt supersedes all pret'ious Ag~ents, whetber oral or u>ritten, betU'een tbe Millers Mutual In- surance Company and/or Paradise Mutual Insurance Company and the Agent, and this Agre~ent may be terminated ~)' eitber party at any time upon written notice to tbe otber (subject to statuto/)' regulations). 15. AGRl BUSL"o'ESS (Non-Fannou<ners). It is understood and agreed that the prot'isions outlined in this Agency Agreement will not app()' to business insured in tbe Company's Agri Department. All business in this category' is covered under a separate Brokerage Contract. 16. COMMISSIONS Attached hereu~tb is the Commission schedule to be used for the various lines of insurance which the Company will consider under this Agreement. The commissions herein agreed upon may be changed by the Company during tbe duration of this Agree- ment by written notice from the Compan)' to the Agent, to be effective nine(l' (90) daJs tbereafter, or as may be required~' the laus or regulations of the State wherein the contract of insurance is u>ritten. The neu' commission shall be effectiL'!' for not less than one (]) yearafter the effectit'!! date. Notu~thstanding tbe aforegoing provisions, the Agent and the Company may mutual(v agree in u<riting at any time to cbange the commission rates for contracts of insurance sold ~,the Agent. Moreover. the tenns of this Ag~ent sball not probibit the negotiation of special commission rates on indit'idual policies ~l' mutual agreement between the Agent and the Company. 17. TRAlvSFER OR SALE. The Agent agrees to git'e adt'ance notice /0 the Company of any transfer or sale of the Agf!1l1 's business in Page 4 ~ ,. h d= 1_ ,'" ^,j,~ .,.' !""""""-,,, " .~~ :~ order that the Company may, at its option and sole discretion: (A.) Enter into a nell' Agency Ag~ent witb the successor; (B.) Place in effect a Limited Agency Ag~ent u~tb the successor, or; (C.) Terminate this Agre~enl. If the purcbasing, transferee or successor Agency does not meet the Company 's criteria for agency appoint- ment, in the Company 's sole discretion, tbe Company has the right not to appoint said Agency. 18. 7ERML'I'ATION. In the event of termination of this Agreement, the Company u~1I comp()' u~tb all existing statutory obliga- tions. In the event of termination of tbis Ag~ent, the Company agrees to furnish the Agent a list of existing Direct Bill Policyholders, including policy numbers, expiration dates, and insureds' names. 19. ERRORS ASD OMISSIONS IA:'1JRANCE. This Agreement is contingent upon Agent maintaining in force ElTOrs and OmissiollS /nSllrance cot'erage. /11' WJT!I' ESS WHEREOF the Company has caused its corporate name to be subscribed thereto and the Agent has set it's hand and seal on the dayandyear first abot'!' u>rillen. ATTEST. t1~P?/:A'(~ .~ ..-<.7 ~'/_ ~ f' ,,. --.--1 - '......s- MILLERS MLTUAL LlVSURAJ'iCE COMPA'I1' ( ComNnv) ~"5- .s.flr' (Title) ~ ''''''') By . (Title) ATTEST. (Title) To be executed in case of incorporated agencies, making individuals interested liable for premiums not accounted for by the Corporation: In consideration of the above named insurance company appointing the above named Agent, and as an induce- ment so to do, 1m hereby guarantee the faithful performance of the obligatiom aboL'!' mentioned by sucb Agent and firm/I' bind MYSID/OURSEL VES 10 pay any sum for which said Agent may become liable to pay to the Company by virtUe of the Agenc:v created under the foregoing Ag~ent and which such Agent shall fail to or refuse to pay. WITNESS (Seal) wrINESS (Seal) (Seal) WITNESS Page 5 ~jlil~'~W!l~liJ!il~~~~~~.cifii;#,&-"";.gllil#iI'11:~,,,,),,"'ftI>~,~#~Ili!l ~-dllllr.I!lij"~ll~ilfllI8'~SiJ ,~:.:, ~ ~ V,, ~ ~ -.f:: I \t~ Yt :tt::: ~ ~ "- d ~ ---. ~ "'- V') S>0 ~ ~ ~ =t1 :t:::, ~ ~ ~ ~ :::;- =- -- .~-,,',~<~.=..., ," ,~n , ., ,~_,., ~,,,~~ .,.,.,.e",," "' '. > ~, "",; ~,~f) (/";', C~(';~ ~~} <J -< :~J ...:;: ~ .Y --.J "~~ ,. :':Jt "-, ;:,";} J> c:::< :~') .-; ,~" c=) -,.::.:) .~" (') ~ rq ',-' ~ ilill ~ , ,t \',J"~",,;,. ,; _Ok., f'< '.... Donald J. Balsley Jr. Attorney J.D. No. 33638 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 Telephone: (412) 765-1760 MILLERS MUTUAL INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW v. No.0I-l188 CABLE & ASSOCIATES INSURANCE AGENCY, INC., Defendant. PRAECIPE FOR APPEARANCE To: Prothonotary Please enter my appearance on behalf of the defendant Cable & Associates Insurance Agency, Inc., in the above-captioned matter. Donald J. Balsley PA J.D. No. 3363 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 Telephone: (412) 765-1760 Attorney for Defendant ,b"'---"oIC'~ "~~o< (' , c, CERTIFICATE OF SERVICE ~~J I, Donald J. Balsley Jr., Esquire, hereby certify that a true and correct copy of the foregoing Praecipe for Appearance was served by placing said document in the United States mail, first-class, postage prepaid, this 12th day of March, 2001, upon the below named person at the following address: Jesse Raymond Ruhl, Esquire 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 u Donald J. Balsley J . ~~r\m~';:;t,i~'"--jil!!f!"kE-:ti::tii1!Jili~iBl;~MOO,g""'~"--;'.En'''N&,'''''i.''-'';~',,.'!r,:;''',;:i'\k'*I<L-0;,,,,dl,iiti.'t#~~iliilillll!tl_~~ ~ ",- ~'",,,- ~,~,,-"< ^,-" ',....... .". ilJ --. r (") 0 C; C ~---n g :Jl: :_~j 'lJOJ -;'Oto .~ 92m "" ... l _::U zc- . " ~:f: .~~ '.' c ') , ,-'-, \CO v 'c:/ )> -.'" ;~J ;~~ zO ~"""', -0 "'7'- , 5>c: W ~'f' Z ,:::.> :.< (Y.) -< '-"'! , ~'", - ~ -~ . , .'. "~-'~~" Donald J. Balsley Jr. Attorney J.D. No. 33638 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 Telephone: (412) 765-1760 MILLERS MUTUAL INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW v. No.01-1188 CABLE & ASSOCIATES INSURANCE AGENCY, INC., Defendant. DEFENDANT'S PRELIMINARY OBJECTIONS PURSUANT TO 42 PA.C.S.A. U028(a)(6)AND MOTION TO STAY PROCEEDINGS AND COMPEL ARBITRATION Defendant Cable & Associates Insurance Agency, Inc. ("Cable Agency"), by and through its attorney, Donald J. Balsley Jr., Esquire, hereby files its Preliminary Objections pursuant to 42 PA.C.S.A. ~1028(a)(6), to the plaintiff's Complaint and requests this Court to stay these proceedings and compel plaintiff to arbitrate its claims before the American Arbitration Association. In support of its Motion, Cable Agency sets forth the following matters: 1. In paragraph 6 of its Complaint, plaintiff identifies an Agency Agreement between Cable Agency and Millers Mutual Insurance Company ("Millers Mutual"). 2. Millers Mutual has attached the Agency Agreement to its Complaint as Exhibit "A". ,;-'" ",. ~ , , -.. ~~ : ~, . " j' .,' - ~ .',~"" ~'I 3. Millers Mutual alleges in paragraph 9 of its Complaint that Cable Agency has failed to remit premiums and that Cable Agency has breached the terms of the Agency Agreement. 4. Millers Mutual has set forth a dispute or disagreement in connection with the Agency Agreement. 5. The Agency Agreement, paragraph 13, clearly and concisely sets forth that "the matter in controversy shall be settled by arbitration in accordance with the rules of the American Arbitration Association. " 6. Cable Agency and Millers Mutual have entered an agreement for alternative dispute resolution. WHEREFORE Cable & Associates Insurance Agency, Inc., requests this Court to (a) sustain its Preliminary Objection; (b) compel Millers Mutual Insurance Company to assert its claims before the American Arbitration Association, and (c) dismiss this action pending arbitration in accordance with the parties' agreement to arbitrate. ~~ Donald J. Balsle Jr. PA I.D. No. 336 8 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 (412) 765-1760 Attorney for Defendant -2- "' ,.;;, ~ J " ~-, , .' it-- - ,'.,. "''''''r~.- Donald J. Balsley Jr. Attorney J.D. No. 33638 535 Smithfield Street, Suite 619 Pittsburgh, P A 15222-2302 Telephone: (412) 765-1760 MILLERS MUTUAL INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW v. No.Ol-1188 CABLE & ASSOCIATES INSURANCE AGENCY, INC., Defendant. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S PRELIMINARY OBJECTIONS AND MOTION TO STAY PROCEEDINGS AND COMPEL ARBITRATION 1. ISSUE PRESENTED Whether Cable Agency's Preliminary Objections should be sustained and its Motion to Compel Arbitration be granted based on the fact that plaintiff signed an agreement to arbitrate any claim it might have arising out of an Agency Agreement? Answer: Yes II. PENNSYLVANIA STANDARD FOR PRELIMINARY OBJECTIONS Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: (6) pendency of a prior action or agreement for alternative dispute resolution. 42 Pa.C.S.A. ~1028(a)(6). "b .. ,"', ,,;, 11.";' "i~il' III. STATEMENT OF FACTS Plaintiff Millers Mutual Insurance Company ("Millers Mutual") and defendant Cable & Associates Insurance Agency, Inc. ("Cable Agency") entered an Agency Agreement whereby Cable Agency promised to pay Millers Mutual all premiums which Cable Agency collected on insurance policies issued by Millers Mutual. (Complaint, paragraph 6) Millers Mutual now claims that Cable Agency collected $6,607.79 which it has failed to remit. (Complaint, paragraph 8) A dispute or disagreement has now resulted between Cable Agency and Millers Mutual with respect to the Agency Agreement. (Complaint, paragraph 9) The Agency Agreement provides the following: If the parties cannot agree on a written settlement to the dispute within one year from the date the dispute arises, or within a longer period agreed upon by the parties then the matter in controversy shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. (Complaint, Exhibit "A", paragraph 13) IV. ARGUMENT A. Pennsvlvania law favors arbitration. As a matter of public policy, Pennsylvania courts favor the settlement of disputes by arbitration. Waddell v. Shriber, 464 Pa. 20, 348 A.2d 96, 98 (1975)(holding that a partner in a dissolved securities firm was required to arbitrate his claims before the NYSE in accordance with the partnership agreement he had signed and the Constitution and Rules of the NYSE). -2- ,,"'""~~~~~ ,.- "L ~.,.;h' When parties agree to arbitration in a clear and unmistakable manner, the court will make every reasonable effort to favor such agreements. Smith v. Cumberland Group. Limited, 45 Pa.Super. 276, 687 A.2d 1167, 1170 (1997). Further, if an arbitration clause does not contain a particular limitation, the court will not impose such a limitation. Goral v. Fox Ridge. Inc., 453 Pa.Super. 346, 683 A.2d 931,933 (1996). Pennsylvania's policy favoring arbitration is also evidenced by statute: A written agreement to subject any existing controversy to arbitration or a provision in written agreement to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract. 42 Pa.C.S.A. ~7303.1 In the instant case Cable Agency and Millers Mutual executed an unambiguous Agency Agreement to arbitrate "any dispute or disagreement" that might arise between them before the American Arbitration Association. Cable Agency's Preliminary Objections should be sustained and its Motion to Compel Arbitration granted. lThe provisions of ~7303 are made applicable to the instant case, which involves common law arbitration, pursuant to 42 Pa.C.S.A. s7342(a). -3- oJ,,- ~ I- , I ....""""'.',"',.' ,;...;:~"" ..... "".'''",," V. CONCLUSION Accordingly, pursuant to the terms ~f the Agency Agreement, this Court should and must stay these proceedings and compel arb~tration of Millers Mutual's claims against Cable Agency before the American Arbitration As~ociation. I I ~g Donald J. Balsley r. PA J.D. No. 3363 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 (412) 765-1760 Attorney for Defendant -4- "" i~""~ ~ ~ "',~, ~. <l~~': . Donald J. Balsley Jr. Attorney J.D. No. 33638 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 Telephone: (412) 765-1760 MILLERS MUTUAL INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW v. No.01-1l88 CABLE & ASSOCIATES INSURANCE AGENCY, INC., Defendant. ORDER AND NOW, to-wit, this day of , 2001, after consideration of Defendant's Preliminary Objections to Plaintiff's Complaint, it is hereby ORDERED, ADJUDGED and DECREED, . Defendant's Preliminary Objections are sustained, . Millers Mutnal Insurance Company is compelled to assert its claims before the American Arbitration Association, and . This action is dismissed pending arbitration in accordance with the parties' agreement to arbitrate. BY THE COURT: J. <""'d,,,,_'~' -, ~~ . '0 .'J I . .', ~ " - --;"', .04 t" CERTIFICATE OF SERVICE I, Donald J. Balsley Jr., Esquire, hereby certify that a true and correct copy of the foregoing Defendant's Preliminary Objectioins Pursuant to 42 PA.C.S.A. 91028(a)(b) and Motion to Stay Proceedings and Compel Arpitration and Memorandum of Law in Support thereof was served by placing said documertt in the United States mail, first-class, postage prepaid, this l~~day of March, 2001, upon the below named person at the following address: Jesse Raymond RuW, Esquire 36 S. JjIanover Street p.d. Box 1319 Carlis~e, PA 17013 Donald J. Balsley r. ~~~~liD1~~itM!1i:;gf,j,~;}.i":1i1~~"'''h''''~"'O,''''''~''.''''''.t31i'''''\i,,@j__itil~.11I111iil]' '_~~a~"~"""'jil;'~jlii" ,." lilOl";O"""" ~ c<,",l,,"t',f~,'","~"'-"", _=~,', -" ~,,,~,,,,=,.,,,. ~. '0," .~__..,,"',', 'C~,""''''"'r,;,,,'. "_,, ,r, "~_" 0' ~,"' < "ill " '~. " 0 a 0 c <" ~ ~Ti tJa::; :~:.:: :.-J nln-'~ Z,"~ :~~J :'(7J 2-:'[''::: SJ-S'~ ',") IT' ;~.' \....J' rC' I :<::: -' -0 C,) :C',<:-, ~iA! ZC' <(, >~ Cd 2srn Z :::> :~;;! ~ U'I :J:J '"'" " ',...i4!","""~"'" " , ~ 'I I ^ ;~ " ',", '", 'J""-''''ili,l'd''l~l.W,;,!' ,. ,. ~ SHERIFF'S RET~RN - OUT OF COUNTY \ CASE NO: 2001-01188 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MILLERS MUTUAL INSURANCE CO VS CABLE & ASSOCIATES INSURANCE R. Thomas Kline :Sheriff or Deputy Sheriff who being duly @worn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: CABLE & ASSOCIATES INSURANCE AGENCY INC but w~s unable to locate Them in his bailiwick. He therefore deputized the sheriff of WESTMORELAND County, Pennsylvania, to serve the within COMPLAINT & NOTICE On March 13th , 2001 , this office was in receipt of the attached return from WESTMORELAND Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 DEP. WESTMORELAND 34.70 .00 71.70 03/13/2001 JESSE RAYMOND RUHL S~ R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me ""- this 1'1 day of ~V ..:un,} A.D. ~Q~*F prothonofa y - ~~ ,c;;.' . - \ . I~ The Court of Common Plea~ of~-'ltmhedarld County, Pennsylvania Millers Mutual Insurance Compa~y p<\c\e 35:1 VS. D~R o3-ow-01 Cable & Associates Ins. . 3 -~~:;i:~;::;:~::::;k Np. 01-1188 "vB ~.ol Export, PA 15632 '. .. - Now, 3/2/01 ,200~, I,' SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Wes tmorJland i County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. .' r~~' Sheriff of Cumberland County, PA Now, J-(; - Affid~vit of Service /.'.J,s-- o'clock f !' 20~, at M. served the within LV ~J+f'\<l r" ( "'.., 1 ~o, upon D"" " . (<v~ Ie iL 3 (}:re~""j b r So. M ~_ ()~^~ ~ at {((J (<.- . Cw.b IL by handing to a . copy of the original' and made known to J..(er the contents thereof. Notarial Seal . Mary Ann Jordan, Notal)' Publio Graansburg, Westmoreland County My Commission Expires June 14, 2004 So answers, . of WES Sworn and subscribed before me this -J- day ofjl}(}./L(' j" ; 20.QL ~~, aA11J~OnJ COSTS . SERV1CE MILEAGE .AFFIDAV1T $ $3LJ,70