HomeMy WebLinkAbout99-07550
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ARAFAT MASWADEH,
Plaintiff
v
NADEEM A. KHAN,
Defendant
To: Arafat Maswadeh
c/o Peter B. Foster, Esquire
Pinsky & Foster
121 South Street
Harrisburg, PA 17101
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
7550
NO. 99-7X50
CIVIL ACTION - LAW
NOTICE TO PLEAD
You are hereby notified to file a responsive pleading to the attached new matter and
counterclaim within twenty (20) days from receipt of this Notice or a judgement may be
entered against you.
Date: !ID
Hubert X. Gilroy, Esquir
Attorney for Defendant
4 North Hanover Street
Carlisle, PA 17013
(717) 243-0472
ARAFAT MASWADEH,
Plaintiff
v
NADEEM A. KHAN,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7750
CIVIL ACTION - LAW
DEFENDANT'S ANSWER TO AMENDED COMPLAINT
Defendant, Nadeem A. Khan, by his attorney's Broujos & Gilroy, P.C., sets forth the
following in response to the Amended Complaint filed in the above matter:
Admitted.
2
Admitted that Defendant is Nadeem A. Khan and the Defendant operated a business at
50 West High Street, Carlisle, Pennsylvania. By way of further answer, Defendant has a
personal address of 1914 Maplewood Avenue, Carlisle, Pennsylvania.
3
Denied. Plaintiff had no ownership interest in the New York Deli business on August 26,
1999. The answers as more fully set forth below are incorporated herein by reference
thereto.
COUNT I - RECISSION
4
No responsive pleading is necessary.
5
Denied. The entire Agreement which sold said business from Plaintiff to Defendant is
attached to this Answer and marked Exhibit "A". Exhibit "A" of Plaintiff's Complaint did
not include the entire Sales Agreement between the parties. Furthermore, said Sales
Agreement was entered into by the parties on July 19, 1999 and July 20, 1999 and said
Agreement provided that Defendant would take over the business on August 19, 1999.
After exchange of information concerning inventory and other matters, Defendant
officially took over said business on August 23, 1999.
6
Denied. Defendant paid Plaintiff the sum of $1,000.00 on July 15, 1999 and the sum
of $2,000.00 on July 26, 1999, said payments being made pursuant to Paragraph 3 of
the Agreement. Additionally, Defendant made a payment to Plaintiff on August 24,
1999 in the amount of $14,481.17 which represented payment on the $17,000.00
owed from Defendant to Plaintiff pursuant to Paragraph 3 less the shortage in inventory
Plaintiff delivered to Defendant as required under Paragraph 5 of the Agreement.
7
Admitted that Defendant operated the business until the business was destroyed by fire on
December 18, 1999.
8
No responsive pleading is necessary in that Plaintiff does not allege any factual allegations.
By way of further answer, Plaintiff's allegation as set forth in Paragraph 8 is denied.
9
Denied. Said allegation is a Conclusion of Law and does not require a responsive pleading.
By way of further response, Defendant did agree to be bound by the contract and invested
in the business by way of financial payments in an amount exceeding $17,400.00 and by
way of extensive time and effort put forth in the business by himself and his wife. It is
further denied that Plaintiff cannot adequately read or write the English language and was
not aware of the conditions of the contract. It is further denied that the Defendant has
overreached in any way.
10
No responsive pleading is required because said paragraph is a Conclusion of Law. By way
of further answer, said allegation is denied in that both parties were bound by said
contract.
No responsive pleading is required because said paragraph is a Conclusion of Law. By way
of further answer, said allegation is denied in that both parties were bound by said
contract.
12
No responsive pleading is required because said paragraph is a Conclusion of Law. By way
of further answer, said allegation is denied in that both parties were bound by said
contract.
WHEREFORE, Defendant requests Plaintiff's claim for rescission of the contract be
dismissed.
COUNT II - BREACH OF CONTRACT
13
No responsive pleading is required.
14
Denied. The allegations as set forth above are incorporated herein by reference thereto.
By way of further answer, Defendant has made all payments required under Paragraph 3
and any payments not made were as a result of set offs against Plaintiff's default under the
contract.
15
Denied. The allegations as set forth above are incorporated herein by reference thereto.
By way of further answer, Defendant has made all payments required under Paragraph 3
and any payments not made were as a result of set offs against Plaintiff's default under the
contract.
16
Denied. Defendant is not in breach of said Agreement. Defendant's failure to make the
$500.00 per month payments were set offs based upon Plaintiff's failure to perform
under the contract and Plaintiff's breach of the contract as follows:
A. Plaintiff failed to repair floor as promised pursuant to the contract which
cost Defendant $2,000.00.
B. Plaintiff failed to replace heating and air conditioning for the back rooms of
the subject property as required by the contract which cost Defendant
$3,000.00.
C. Plaintiff failed to modify two bathrooms as required by the contract which
cost Defendant $2,000.00.
D. Plaintiff took a milk cooler from the property for purposes of repairing
pursuant to the terms of the contract and Plaintiff did not return said cooler
to the Defendant with the value of said cooler being approximately
$4,000.00.
E. Defendant was required to pay a security deposit for an electric bill of
$1,200.00 for the property in order to continue electric service, with said
bill being an obligation of the Plaintiff which he failed to fulfill pursuant to
the terms of the contract.
F. Plaintiff received proceeds on credit card accounts in the amount of
$945.00 which, pursuant to the contract, should have been credited to
Defendant.
i.
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17
Denied. A responsive pleading is not required because said allegation is a Conclusion of
Law. By way of further answer, Defendant is not in breach of the contract.
WHEREFORE, Defendant requests your honorable Court to dismiss Plaintiff's complaint.
COUNT III - ANTICIPATORY BREACH
18
No responsive pleading is required.
19
Denied. The allegations as set forth above are incorporated herein by reference thereto.
20
Admitted.
21
Denied. Said allegation is a Conclusion of Law and does not require a responsive pleading.
Byway of further answer, Defendant's November 15, 1999 letter was an invitation to the
Plaintiff to purchase back the business from the Defendant by repaying to the Defendant
his investment in the business which offer was refused by the Plaintiff.
22
Denied. Said allegation is a Conclusion of Law and does not require a responsive pleading.
By way of further answer, Defendant's November 15, 1999 letter was an invitation to the
Plaintiff to purchase back the business from the Defendant by repaying to the Defendant
his investment in the business which offer was refused by the Plaintiff.
WHEREFORE, Defendant requests your honorable Court to dismiss Plaintiff's complaint.
NEW MATTER
23
Defendant's allegations as set forth in Paragraphs 1 through 22 above are incorporated
herein by reference thereto.
24
Defendant has paid to Plaintiff $17,481.17 pursuant to the terms of the sales contract.
25
Plaintiff has received $945.00 in his charge account which represented credit card
transactions on the business during the time the business was owned by the Defendant.
26
Defendant has invested extensively in the business since acquiring the business in August
1999. Defendant's initial start-up cash investments totaled over $13,000.00.
Additionally, Defendant and his wife have extended an extraordinary amount of time in
servicing the business since taking over the business in August 1999.
27
Plaintiff guaranteed to the Defendant that he "paid for the insurance for the property"
that would provide adequate insurance for inventory, business equipment and loss of
business use for the property, and Plaintiff advised Defendant that he paid the insurance
bill on the Defendant's behalf.
28
In violation of the Agreement between the parties, Plaintiff placed insurance on the
business in Plaintiff's own name which may result in Defendant's inability to recover
damages as a result of the fire destruction of the business and as a result of the
Defendant's loss of revenue for business use from the property.
WHEREFORE, Defendant requests your honorable Court to dismiss the Complaint.
COUNTERCLAIM
NADEEM A. KHAN v. ARAFAT MASWADEH
29
The allegations of Paragraphs 1 through 28 above are incorporated herein by reference
thereto.
30
Plaintiff and Defendant entered into a verbal agreement whereby Plaintiff was going to
insure the business for the Defendant under the Defendant's name and for the protection
of the Defendant.
31
Despite said verbal agreement, Plaintiff listed the insurance policy for the business in
Plaintiff's name alone which may cause determent to the Defendant if the insurance
company denies the Defendant's claim.
32
Defendant has a total claim for loss from the business of $196,000.00 in physical loss for
inventory and equipment and approximately $86,000.00 in loss of business use or
revenue.
33
Plaintiff attempted to perpetrate a fraud on the Defendant by Plaintiff listing the insurance
policy in the Plaintiff's name alone rather than listing it in Defendant's name pursuant to
the agreement of the parties, with the Plaintiff's intent being the Plaintiff would collect
insurance proceeds on any destruction of the property despite the fact that Defendant was
the owner of the property and would be suffering loss with respect to ownership of all
equipment, inventory and loss of business use.
WHEREFORE, Defendant requests your honorable Court to enter judgement in
Defendant's favor against Plaintiff in an amount exceeding $ 25,000.00 which is the
compulsory amount requiring arbitration.
Respectfully submitted,
?tl
Hubert X. Gilroy, Esquire /
Attorney for Defendant
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
(717) 243-0472
I verify that the statements made in the foregoing document are true and correct. 1
understand that false statements herein are made subject to the penalties of 18 PA.C.S.
Section 4904 relating to unsworn falsification to authorities.
DATE:
`?'?'m L
Nadeem A. Khan
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T OF COMMON PLEAS OF
ARAFAT MASWADEH,
Plaintiff
VS.
NADEEM A. KHAN,
Defendant
IN THE LOUR
CUMBERLAND COUNTY, PENNSYLVANIA
?75e'?
N0.99-
CIVIL ACTION - LAW
PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER
23. Admitted.
24. It is denied that Defendant has paid to Plaintiff $17,481.17 pursuant to the terms
of the purported sales contract. On the contrary, Defendant paid Plaintiff a total of $15,000 for
the purported sale of said business.
25. It is denied that Plaintiff has received $945.00 in his charge account which
represented credit card transactions on the business during the time the business was owned by
the Defendant. On the contrary, Plaintiff never received. $945.00 in his charge account for credit
card transactions related to the business which occurred after Defendant occupied the premises.
26. Denied. It is denied that Defendant has invested extensively in the business since
acquiring the business in August, 1999. It is denied that Defendant's initial start-up cash
investments totaled over $13,000. It is further denied that Defendant and his wife have extended
an extraordinary amount of time in serving the business since taking over the business in August,
1999. Plaintiff has no knowledge of the truth or falsity of said averments and strict.proof
thereof is demanded at trial.
27. It is denied that Plaintiff guaranteed to the Defendant that he "paid for the
s?ar?®
insurance for the property" that would provide adequate insurance for inventory, business
equipment and loss of business use for the property, and that Plaintiff advised that he paid the
insurance bill on the Defendant's behalf. On the contrary, Plaintiff never made said purported
statements or assurances to Defendant.
28. It is denied that in violation of the agreement between the parties, Plaintiff placed
insurance on the business in Plaintiffs own name which may result in Defendant's inability to
recover damages as a result of the fire destruction of the business and as a result of the
Defendant's loss of revenue for business use from the property. On the contrary, there was no
agreement.between the parties that Plaintiff would buy insurance for the property on Defendant's
behalf. Further, since there was no such agreement between the parties, Plaintiffs placing
insurance in his own name cannot prevent Defendant from recovering damages as a result of the
fire destruction of the business and as a result of the Defendant's loss of revenue for business use
from the property because Defendant has no legitimate claim to insurance proceeds.
WHEREFORE, Plaintiff requests the Court to dismiss Defendant's New Matter.
PLAINTIFF'S ANSWER TO DEFENDANT'S COUNTERCLAIM
29. Admitted.
30. It is denied that Plaintiff and Defendant entered into a verbal agreement whereby
Plaintiff was going to insure the business for the Defendant under the Defendant's name and for
the protection of the Defendant. On the contrary, Plaintiff never entered into a verbal agreement
whereby Plaintiff would insure the business for the Defendant under the Defendant's name and for
the protection of the. Defendant.
31. It is denied that despite said verbal agreement, Plaintiff listed the insurance policy
for the business in Plaintiff's name alone which may cause detriment to the Defendant if the
insurance company denies the Defendant's claim. On the contrary, no such agreement was ever
entered into between Plaintiff and Defendant. Further, since there was no such agreement,
Plaintiff's listing of the insurance policy for the business in Plaintiff's name cannot cause detriment
to the Defendant if the insurance company denies the Defendant's claim because Defendant has no
legitimate claim to insurance proceeds.
32. It is denied that Defendant has a total claim for loss from the business of
$196,000.00 in physical loss for the inventory and equipment and approximately $86,000.00 in
loss of business use or revenue. Plaintiff has no knowledge of Defendant's losses from said fire
and strict proof thereof is demanded at trial.
33. It is denied that Plaintiff attemptedto perpetrate a fraud on the Defendant by
Plaintiff listing the insurance policy in the Plaintiff's name alone rather than listing it in
Defendant's name pursuant to the agreement of the parties, with the Plaintiff's intent being the
Plaintiff would collect insurance proceeds on any destruction of the property despite the fact that
Defendant was the owner of the property and would be suffering losses with respect to ownership
of all equipment, inventory and loss of business use. On the contrary, there was no agreement
between the parties that Plaintiff would pay for insurance for the property on behalf of Defendant.
Plaintiff did not perpetrate a fraud on the Defendant since there was no such agreement. Denied
that it was Plaintiff's intent that Plaintiff would collect insurance proceeds on any destruction of
the property despite the fact that Defendant was the owner of the property and would be suffering
loss with respect to ownership of all equipment, inventory and loss of business use. On the
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contrary, Plaintiff had no such intent. Plaintiff's intent was to cover himself if there was a loss to
the business. Plaintiff was the owner of the property and, therefore, Plaintiff had no intent that
Defendant was the owner of the property and would be suffering loss with respect to ownership
of all equipment, inventory and loss of business use. Defendant has no valid claim to any
purported losses because there was no such agreement and Plaintiff had no intent to defraud
Defendant.
WHEREFORE, Plaintiff requests this Court to dismiss Defendants Counterclaim.
March 29, 2000 Respectfully submitted,
Peter B. Foster
Attomey for Plaintiff
PIAISKEY & FOSTER
121 South street
Harrisburg, PA 17101
(717) 234-9321
VERIFICATION
I verify that the statements made in the foregoing Reply to New Matter and Answer
to Counterclaim are true and correct. I understand that false statements herein are made
subject to the penalties of 18 Pa. C.S., Section 4904 relating to unsworn falsification to
authorities.
March 29, 2000 &22-
ARAFA-` T MASWADEH
CERTIFICATE OF SERVICE
I hereby certify that on this date, March 29, 2000, I served a copy of the foregoing Reply
to New Matter and Answer to Counterclaim on the Defendant by mailing said copy by United
States Mail at Harrisburg, PA to the Attorney for the Defendant at the following address:
Hubert X. Gilory, Esquire
BROUJOS & GILROY, P.C.
4 North Hanover Street
Carlisle, Pa 17013
March 29, 2000
Peter B. Foster
Attorney for Plaintiff
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MARTSON DEARDORFF WILLIAMS & OTTO
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ARAFAT MASWADEH, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 99-7550 CIVIL TERM
NADEEM A. KHAN,
Defendant CIVIL ACTION - LAW
RULE TO SHOW CAUSE
AND NOW, this day of , 2000, a Rule is granted to show cause
why State Auto Mutual Insurance Company should not be permitted to intervene in this action.
Rule returnable on 2000 at Courtroom No. _, Cumberland
County Courthouse, Carlisle, Pennsylvania.
All proceedings to be stayed meanwhile.
BY THE COURT,
, J.
H }
.A ,
ARAFAT MASWADEH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V NO. 99-7550 CIVILTERM
NADEEM A. KHAN,
Defendant CIVIL ACTION - LAW
ORDER OF COURT PERMITTING INTERVENTION
AND NOW, this _ day of , 2000, State Auto Mutual Insurance
Company is permitted to intervene in this action as a party upon the ternis set forth in the Petition
for Intervention and will be permitted to file the pleading marked as Exhibit "B" on the Petition to
Intervene.
BY THE COURT,
, J.
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7550 54
ARAFAT MASWADEI-I,
Plaintiff
V.
NADEEM A. KHAN,
Defendant
4,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7550 CIVIL TERM
CIVIL ACTION - LAW
PETITION TO INTERVENE. BY STATE AUTO MUTUAL INSURANCE COMPANY
1. PetitioncrisStatcAutoMutual lnsuranceCompanywhichis alicensed Pennsylvania
insurance company with offices at 4900 Ritter Road, Mechanicsburg, Cumberland County,
Pennsylvania 17055.
2. Respondents are Arafat Maswadeh, an adult individual who resides at 335 North West
Street, Carlisle, Cumberland County, Pennsylvania,17013, and Nadeem A. Khan who is an adult
individual with a business address of 50 West High Street, Carlisle, Cumberland County,
Pennsylvania, 17013.
3. Petitioner, who is not a party to the above captioned action and wishes to intervene
as a party in said action because Petitioner has an interest in the result of the said action.
Specifically, Petitioner had a commercial general liability policy with Plaintiff which provided
coverage for the loss of contents and also liability coverage for Plaintiff's business at 50 West High
Street, Carlisle, Cumberland County, Pennsylvania known as the New York Deli. A copy of said
policy is attached as Exhibit "A."
4. On or about December 18, 1999, a fire occurred on the premises of the New York
Deli at 50 West High Street, Carlisle, Cumberland County, Pennsylvania. As a result of said fire,
various provisions of the insurance policy between Plaintiff and Petitioner may come into play in
the event Plaintiff prevails on his Complaint and is able to rescind the sale of his business to
Defendant. Accordingly, Petitioner maybe adversely affected by the results of this legal action and
Petitioner has a legally enforceable interest that may be affected by said action. Furthermore,
Petitioner is concemed whether its interests will be adequately protected by the parties.
5. Petitioner avers that the granting of its Petition to Intervene will not cause undue
delay to the proceedings and will further judicial economy.
M
6. Petitioner avers that it should be permitted to intervene in subordination ofthe above
captioned action.
7. If Petitioner is permitted to intervene, it will demand that the Complaint filed by
Plaintiff be dismissed and the sale of said business by Plaintiff to Defendant on or about August 26,
1999 be permitted to stand.
8. If Petitioner is permitted to intervene, it will file an Answer With New Matter, a copy
of which is attached hereto and marked Exhibit "B."
WHEREFORE, Petitioner, State Auto Mutual Insurance Company requests that its Petition
be granted and it be allowed to intervene as stated above.
Respectfully submitted,
MARTSON DEARD?O-RFF WILLIAMS & OTTO
By
Daniel K. Deardorff, Esquire
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
Attorneys for Intervener
State Auto Mutual Insurance Company
Date: II7/bb
"99-12=1B 09:2s? o DIRECT BILL INSURED 4-PAY
vp ¦eft¦
Insurance Companies
37 N 00 10 " P. 003
STATE AUTOMOBILE MUTUAL INSURANCE COM?ANY'I
POLICY NUMBER PBP 9570561 00•
NAMED INSURED AND ADDRESS
ARAFAT D NASWADEN
T%A NEW YORK DELI S GROCERY
50 W HIGH STREET
CARLISLE, PA
17013
BRANCH: COLUMBUS REGION
POLICY PERIOD: FROM: MAR. 01, 1
12:01 A.H. STANDARD TIRE AT THE
IN RETURN FOR THE PAYMENT OF THE
POLICY, WE AGREE WITH YOU TO PROV
THIS POLICY CONSISTS OF THE
SUPPLEMENTAL POLICIES FOR 1{
ANY SUPPLEMENTAL POLICIES YI
SELF-CONTAINED CONTRACTSAN
THE AGREEMENTS, CONDITIM
FOUND IN IIS-.P03dFA--:*
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COVERAGE
..........._.___
COMMERCIAL PROPERTY COVERAGE
COMMERCIAL CRIME COVERAGE
COMMERCIAL GENERAL LIABILITY COVERAGE
IS
'ENDENT UPON
OTHER PROVIS
SUBJECT TO
T07AL PREMIUM:
PREMIUM AT INCEPTION:
FORMS APPLICABLE TO THIS POLICY:
IL 09 10 1/81 IL 01 72 11/93
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AGENCY NAME AND ADDRESS
HILLER INSURANCE ASSOC INC
19 BROOKWOOD AVENUE SUITE 102
CARLISLE, PA
17013
AGENCY NUMBER: 0006812
PBP 15 7/96
IS OF THIS
POLICY.
PREMIUM
$1,136.00
$102.00
$624.00
$1,862.00
$1,862.00
IL 02 46 9/96
BY
(AUTHORIZED REPRESENTATIVE)
FORM NO. PBP1
01/86
EXHIBIT "A"
If
'99-12=18 09:2? DIRECT HILL INSURED 4-PAY
07 RAM E
Insurance Companies
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STATE AUTOMOBILE MUTUAL INSURANCE COMPANY
POLICY NUMBER PBP 9570561 00
NAMED INSURED AND ADDRESS
ARAFAT D MASWADER
T/A NEW YORK DELI b GROCERY
50 W HIGH STREET
CARLISLE, PA
17013
LOCATIONS OF PREMISES
LOCATION 0001
50 W HIGH STREET
CARLISLE, PA
CUMBERLAND COUNTY
17013
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P. 004
AGENCY NAME AND ADDRESS
MILLER INSURANCE ASSOC INC
19 BROOKWOOD AVENUE SUITE 102
CARLISLE, PA
17013
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FORM NO. SNADEC 11/89
IIII?1?®a - IssriRn 02/17/gq e/,Cttr rn?..
'99-12-L8 09: U1RLLT BILL IrQURLU w-rat
Insurance Companies
STATE AUTOMOBILE MUTUAL INSURANCE COMPANY
as it UV A.
P. 005
POLICY NUMBER POP 9570561 00
s
NAMED INSURED: ARAFAT D MASWADEH
TOTAL PREMIUM: $1,136.00
DESCRIPTION OF PREMISES:
PREM OLD OCCUPANCY
1 1 RESTAURANT-NO ALCHL-W/O DANCE
CONSTRUCTION: JOISTED MASONRY 04
6 ....r. ,?ti??R:....w -?r.:
COVERAGES PROVIDED: .nmr?rnil YE, MOM M J:ewM,?." L?'a`c.'y
??e.,.???^-?",?
INSURANCE AT THE DESCRIBED PREMISES AP SHOWN BELOW:
PREN BLD COVERAGE PREMIUMS
I I CONTENTS IAL FORM ..• „_ $674
LIMIT: $115,000
REPLACEMENT COST
DEDUCTIBLE: $501-
COINSURANCE: 8fI?== -, .._.__---•-.- -..
$150
1 1 B __?
^`kDT83FC?=LOSS
SPE[1L
FOAM
$284
SU$ i#IbN4H`ELMIT3ITION - •" =
DEDUCTIBLE: NONE
COINSURANCE: NIL
ADDITIONAL PREMIUM FROM COMMERCIAL GLASS: $28
FORMS APPLICABLE TO THIS COVERAGE PART: CP 00 10 6/95 CP 01 21 6/95
CP 10 30 6/95 MC 64 7/96 MC 109 3/94
COUNTERSIGNED
(DATE)
FORM NO. FI108D 01/86
BY
(AUTHORIZED REPRESENTATIVE)
ISSUED 02/17/99 AGENT COPY
'99-1'2=18 09:2 DIRECT BILL INSURED 4-PAY
Insurance Companies
STATE AUTOMOBILE MUTUAL INSURANCE COMPANY
POLICY NUMBER PBP 9570551 00
MANED INSURED: ARAFAT D MASWADEN
37 N 00'0 W'
P. 006
GLASS COVERAGE FORM TOTAL PREMIUM: $28.00
THE GLASS COVERAGE FORM APPLIES TO THE ITEMS DESCRIBED BELOW. UNLESS
OTHERWISE STATED IN THE SCHEDULE, THE GLASSp S
ALL EDGES SET IN FRAMES. 4?z?„?"A?G1???TH
NUMBER DT
OF IN
LOC BLD PLAT
ES LENT
--------------------------------
1 1 5
DESCRIPTION OF GLASS, 41
PLATE-PLAIN OR WIRED LJ.$
FORMS APPLICABLE TO THIS COaKA-Z
3
oE_RKT ,BLE PREMIUM
$0 $28
AND POUTION IN BUILDING:
00 15 06/95
COUNTERSIGNED
BY
(DATE) (AUTHORIZED REPRESENTATIVE)
FORM NO. CP1915 01/85
- ISSUED 02/17/99 AGENT cnPV_
U1RELr DILL LnJUTLU 4 LAI
99-10 BAOZF®
Insurance Companies
STATE AUTOMOBILE MUTUAL INSURANCE COMPANY
P. 007
POLICY NUMBER PBP 9570561 DO
NAMED INSURED: ARAFAT D MASNADEH
TOTAL CRIME PREMIUM:
$102.00
DESCRIPTION OF PREMISES:
LOC PRM OCCUPANCY
1 1
INSURANCE AT THE DESCRIBED PREfiTSES
ATTACHED CUMMF.RCIAL CRIME COVERAGE
FOAMS APPLICABLE TO THIS COVERAGE
ON THE
04 10/90
ISSUED 02/17/99 AGENT COPY
_; FORM NO. CP3D 01/86
99=1z T18 09:29 DIRECT BILL INSURED.4-PAY
as •IAz¦ -P I
f/7 Insurance Companies
STATE AUTOMOBILE MUTUAL INSURANCE COMPANY
POLICY NUMBER PBP 9570561 00
n.a.y
37 N 00 10 * P.008
NAMED INSURED: ARAFAT D MASMADEH
COVERAGE PROVIDED:
INSURANCE AT THE DESCRIBED PREMISES APPLIES ONLY FOR THE COVERAGES SHOWN BELON;
RATE PLAN I - COMBINATION CRIME -- SEPARATE LIMITS OPTION
LOCATION 0001 PREMISES 001
COVERAGE ?-
_ C-THEPi, DISAPPQ _-PREMIUM
w1E AND
DESTRUCTION -PREMIREMISES $82.00
C-THEPT, DISAPPEARANCE AND
K?
f t ............... DESTRUCTION - MESSENGER $20.00
MESSENGER NUMBER; 1?
$102.00
I
FORM NO. CP3D
01/86
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"99-12-18 09:29 G '?+' y'rnc
% Insurance Companies VAM
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STATE AUTOMOBILE MUTUAL INSURANCE COMPANY
POLICY NUMBER PBP 9570561 00
NAMED INSURED: ARAFAT D MASWADEH
PART
AUDIT FREQUENCY: ANNUAL THE INSURED IS INDIVIDUAL
LIMITS OF INSURANCE:
GENERAL AGGREGATE LIMIT
(OTHER THAN PRODUCTS - COMPLETED OPERATIONS) $2,000,000
PRODUCTS - COMPLETED OPERATIONS AGGREGATE LIMIT $2,000,000
EACH OCCURRENCE LIMIT
PERSONAL AND ADVERTISING INJURY LIMIT $1,000, A
MEDTCAT. EXPENSE LIMIT; ANY ONE PERSON
?+x?
FIRE DAMAGE LIMIT, ANY ONE FIRE
EACH PAID CLAIM REDUCES THE AMOUNT
PERIOD. SEE PARAGRAPHS 2 AND 3 OF
i
TOTAL GENERAL LTA>
FORMS APPLICABLE TO THIS
CG2407-E 01196
i
00 01 07/98
J/NUUlU
A. 009
ANNUAL
$624.00
CG 21 47 07/98
Y
(AUTHORIZED REPRESENTATIVE)
FORM NO. GL4D 01/86
WE ilQmiwm-vW=ai;t
?9-12-19 09 30a ??e?sw WAR"" uu, an.aunw ? rep .
ve Insurance COmpan? ies it vusw
STATE AUTOMOBILE MUTUAL INSURANCE COMPANY
POLICY NUMBER PBP 9570561 00 ,
NAMED INSURED: ARAFAT D MASNADEH
LOC ST TER CODE
1 BA 012 PREMIUN BASIS
13673 100,000 GROSS SALES PER
GROCERY STORES 1000 RATE 1.098 PREMIUM COV
5 S110 0
$0.495 $50 p
LOC ST TER CODE
1 PA 012 16814 PREMIUM BASIS.
RESTAURANTS - 150,000 GROSS Il"`^x•- ?hv PREMIUM COV
WITHOUT DANCE FLOOR SALE OF ALCOHOL °"- - $368 0
COV $96 P
P IS FOR PRODUCTS-COMPLETED
??JJ}I COV er..--
p OTHER HAZARDS.
FORM N0, ESl
01/87
ISSUED 02/17/00
P. 010
• •C r
COMMERCIAL PROPEFMJ l
BUSINESS INCOME COVERAGE FORM
ACTUAL LOSS SUSTAINED =°12 MONTH LIMITATION
A. C,OVEWQEZ_:.,' I C. ARaradons and .-No* Bundinga\ We will pa) '
of Busktass trneame
WA il.pay.fgr.the actual bss of Business Income
' you ii tabu dud to the nary suspension of your
•operations- d Ang the 'period of resmradon•• The
suspension must be caused by direct:physical loss
of or damage to property at the premises desasbed
in the Deciaraticns, including personal property in the
open (or in. a vehidle) within 100 feet, caused by or
resutrkg from arty Covered Cause of Loss.
1. Business income
Business; trtc6ine means the
a Plot Iricome (Nef'Profit or.Lom before income
s Was) l*w;( W twe,Sueert eamed crincurred;
b. ;Contkwi g normal opaMling expenses Nicer-
Z -i'ved:; inctuding ordinary payrpit expenses of
_oNY ttae.Tollowkg types or employees:
1:' Of kws '
2 Executives .
J:. 3 DepBrtroent managera+,
..,'6 Empty sundeFCwnVact-•.
2. Covergd Causes"of Loss : .
See. apoicable.Causns of. Lass Form. as shown in
the Oeclaratiuxis. ., ••^.
AddipsraBQS i,. ..
m, Expameas,ta Reducsr:'7.6sa.: We wpb pay any
(• r : , 8ry:107cpen99; vouvx ir.. ex6ept the cost
.. 01001guWtklga.fire;to radude th®•ainotint of
° ,^ .? this Crn!era9lllfJ2nn :We wit pay for
?o;itiq,..Vd tit tFFat.they do not
.. '"k.>.h :^s • '•BiaQutji?sS,1tW?:0#0wisdrwould
loss
use
b ?u4horitly IV p>ty fgr'gtel
ciuse
?? 1''?•^F3D,•.'•? \ ` i ,,S?Sy,?rl4ogie.YO.il.'4,u.¢??p.fold by .
'iY; ?.:• l'.Fµ??w,?t,,,tt'p;,:•o!Ai> tYr7llal'eM•n^`•..aC?<?.yS;Sto?
I': •;),.Jt'.:•:e7^;9?gt-.•!r.+.'•a. pf?itllS9ts.dt>?:?'dN?r''t ?..q'r.?.`? ,':
.. bss'of.gf damage'td perry, bther.than.ttie
a...; desctf4ed premises,,Cat±Sg5tiby ar;rasulting
for.
a.Plodo<UptoiWt>tbt>seC.
•A: V.%)NiII WPPi I
. -•utivawreeksfrom fhe date of that,adtlom'
W the acnml loss ya{sus
fain due to direct Wpical loss or damage m
the descilbed premises caused by or rgwAW%;
from any Covered Cause of boss to:
(1) New buildings or sbucbaes, xtWw cam
plate or under constructlon:,-
?q Aiteratlon S or eddllionstto wdstkiy litigd
`kegs or strucbrtes; and 1
(3)' Mai equlpr a supplies or buikJkg
matedab located an or whW 100 teat of
the described premises and. A.
, . Used.inl tt17! ;carntriw0on, elteratkxrar'
-(8)
(b) • Incbdent&l'tp''the'a;cupwW of new
build .7••
rc seat . phyakxu .
. die'start of 'pperatbt,?s,' .'?er(od of nssmra-
tbn•,WPrbeyh Oi_$!e;$e 'aperi ns' would
have begun if the, t plijL ins or dam-
age had not oCqured. ::. .
1` drect } 1064 Or damtlge delays
:d.
during the Period alai aE
(1) _BegNis?fr'ie:ilato
s. we will. pay. for
Incoina yIouvIrm
IS
.. l
(a) a i(t0 rsoulp More your.
_ M11, f sala`bla Speed,y ft-
po•RhYftal loss or dint-
30 con" '?ir® m the data
t &P
-loss.cowhd oma;ih,uW 'N caused by
w 41f iraCCtfysif`81 Id$s bn"darrla?b' aC tlfa desalted
precgis?,^'C?a?µ?,@d:by P? rttsniting from ariy
.. 1 • .. ....- ':.5,•r?G t' S rY^:.i• J:C aCL: 1.
4. troverage FEctensian ?.?: %•:7 ltt
YoN•'mayi eztlirid: Wka&b Sde PifiW0)Y. ft
Coverage.Partesfollovls" •rrury'? di
y . ..... . v • g. ,l°w7 . y
"m' .; Niuwly+AC-gliked Locatbr?s • ... " r
iw An G'E 1P9e
You may extend your Busirms Income Cover-
s , . age to apply to property at any location you
acquire other than fairs or exhibillom
.
`b.. Irwagco under this Extension for each newly
acquired location will end when any of the fol-
bwihy first occurs:
(1) This Policy expires;
]2) 30 days expire agar you acquire or begin
'to c nsLWwt the property: or
(3) You acquire specific coverage on the
.. • Drope?y
;' Ws,will.chAige you additional premium for
•.. regWpts reported from the date you acquire the
See applicable Causes of Loss Form. as shown in the
:: Jpe?rdlois In a3ddMon, the following apedaJ exdu-
MOM also apply to Business Income Actual Loss
;:shed Cav4r1ge. : .
. We vrrg.nt><?pieryt,for. .
Any bas earned by or nmrltkhy from direct OVA-
cal IM or damaga to radio or television amerrtas,
inrdu cli g theU lea" wirkg, masts drtowem
2 Any khaeasa of loss caused by or resulting from:: I .
D. LOSS CONDEMNS
The following conditions apply in addition to the
Common Policy Conditions and the Commend:
Property WrAmlons
1. Appraisal
If we and you disagree on the amiAiml of Net
Income and operating expense or thPamount of
loss, either may make written demand for an •
appraisal of the lass. in this event'sach party wig
select a competent and impartial appraiser.
The two appraisers will select an urnpke• N they
cm-0 agree, elt her may request that selection be
made by a judge of a Court having pron. The
appralserS will state separately the amo" W Net
hmn, and operating expense or amount of 10=
N they fail to agree, they•wlti submit their dllfer:
, , 0 to the umpire. A decision agreed to by any
two will be binding.
Each party wit
a Pay Its chosen appiaiseu; and '
b. Bear the other expenses of the appraisal and
umpire equally. .
N two Is an appraisal, we will still retain our rw;
to deny,the claim, t; :r•
Delay 'lebhuYdig, repairing or repilardruy the 2. 'Duties In The Event df Loam
property or resuming •operatkrmw due to
IrMfomariM at the location of the rebuilding, a You must we tmt the following are done in the
repak or,repiacadnorrY by stripers or other per- event of losm
30
:. . ' : `;•. (1) Notify the police N a-law May have-been.
b.-1.Su3pen3ionW lapse olrcahcellatlon of any ' • broken.
.:1OWsq:aease, ce c0ntrwW?BuFB the suspetr- i('r_
aitib lapse Ot. Ri dkecty amused M Give us prompt t L4,.#he•direc t pfiyrsi- '
_ ;lay th® uraper!skid of •ope(atkxhs,' we will cal loss or dainags' hxdudea de3alptksrc
cow., :lost ql t.:C acts Y BUSidhBSS of the property WbISted...:.; •;;9;}J ;t •...2'''
a 1nCOrI18'duel(?gth®'!perTod.olfbstcratidn.' .. r..;•. ! :_•• ..a•:?• ..'
' .• ':4?.'I '.. r E„ ?l... ''? r: rl.' •.• '`•` :. .... • (3) As so
9p as Ihosslble..gtvi? ills 8 desaipllOn
4Aigr: Eisr;iKPe!?Se `by or nisultin? trerih oft)""
whedh: aria where the ?iectjrf hall-'`"
=''= pr'?ance?G,atjio?rh?o?f ?aoy IlCe?nse, c(: . _: cal loss ardamageor~gmld , • :: i J
:.?+• ,11L
•tea?'Tt?t?y:erh Ygl`rIYNY D(I,W,ora.• .?-.l•?? -:•L-'.?':: :.: .,..iy?p - ,•
- .rn?'?..?;':.w,. 'sr .:?[+i' r '????•• ..rf c.:1 .o::i.if, `l:'?K'
" ?g? Take'aU°reasonable ste(p.3.too protem the
/' •••'• "• •; ?`I!•/ ,." ?i' •:r:.' ::1 1 ('ir011,er?9d. PloRerty,: [nom hrtuer?damage by
L Anyot?erco quertIidk-issa. _? . 'IL ',.t Nfeasible, set
.::.y;,.'.. ,. ?•'? ., ?;r'?;': ••ilte.dama Bd p?PeEtY.Ppida ?p• Fn:ttle'
C. C111stTS'bFINSURANCEr' ?` r'.v':?.u:(t:'` :.... r ;j.,3, L
? - .:.. I/ .. - . h::a`: : ••:'•„?' ... ,'..,: ?? .•.?•?rbrt'??rP[?O/F •e?811j(<13tf{O.nyrr,,
`?-_ :• •IIT t(l ,!It.i ,C' ' ,. ??.... (,: ..'.'-f ,. peep a ,OY rdv - /oy.i:a sea- '? jorrier
gl prllr payyror kiss of eviln ess lricorrieethat- .
wtddr?12`i?o saislthre• months at er the date' tpmpw
4?tr?=F. ation A ifha setth ment of-the claknyi710si:,,
idf dkect plrys d lobs or damage. wig not lr6ease ",Llmlt of Insurarhee
no 100Y dfjs?,;*
Co.
(e) As often as may be reasonably required,
permit* us to Inspect the property proft
the less or damage and examine your
books and records.
1 fnAW permit us to take samples of damaged
and undamaged property for Inspection,
testing and analysis, and permit us to
make copies from your books and nxmrds.
(8) Send us a signed. swam proof of loss con
-
taping the information we request to Pares-
Ugate the dale. You must do this witldn 60
days after our request We win supply you
wide the necessary forts.
M Cooperate with us In the Investigation or
settlement of the claim.
[ :. (8)' If you Intend to' continue your business,
at oW must as wkly as po=Ibia.
46: Ma may examine any insured trader oath, while
c ..not In the presence of any otter Insured and at
such times as may be reasonably required,
::+:.' a?atrt ary matter relating to this insuarnce ar
. ttw claim, knokrdkng an tnstxed's books and
records. In the event of an examknauon, an
. . tnsurred's ernswers rtarst be signed.
income loss sustained during the perbd June ' M1
- September 1. Loss during the perior
September 2 - October 1 Is not covered.
Example No. 2:
A Covered Cause of Loss results In the loss a;,
the data processing programming records or:;
August 1. The records are replaced on
October 16. We will only pay for the Business `
Income loss-sustained during the period
August 1 - September 29 (60 consecuuve;
days). Loss during the Period September 30 -
October 16 is not covered.
4. Loss Determination
a. The amount of Business Income loss will be
determined based ors
(1) 7he Not
Income of do loss or damn
direct physical
(2) The Rkely Net Income of the business N no
loss or damage occurred:
(3) The operating NgoW 4 m inckoft ft pay'-
roll i wkxled under A.1.b. abom neces_
eery to resume'operatona' with the same
quality of service that existed )tilt before
the direct physical ? or damage; and
(4) Other relevant sources of information,
inchxlIn¢.
(a) Your.fInanciai record and aocopnung
(b) Bas, invakxs and of ervouchers; and
(e) Deeds; gins or conbacm
3. Limitation - Electronlc Media And Records
We will not pay:,for any kus of Business Income
teased by dlroct phpical loss of or damage to
Eleciroiiic'F a arx!'Re ds after the longer of
•a 60 consecutive days from the date of direct
physical loss or damage; or •
b. The Period, beginning with the date of direct b.. Resunptici Of Operations
physical loss or damage, necessary to repair,
rebuild or replace with reasonable speed and We will reduce the amount n your Business
3Mbt-AtAl ty, other property at the described kmmise loss to the 6daht you cat resume your .
prercClest'i 0 td'ioss or damage caused by the
. 'operation5r' in', whole or In part, by using
:qo .
.,.Sam dDCiorenCe : damaged or nritdainaged ( In9 men:han-
EI(?ctronlo Media acid
Recolds are ' dise.and,#ocl¢ at: the described premises or
_ ;
s
r
?.
+ d ?.
•
:•
(1) ; t:loi 1rG .data ftlecoiding.or stor If you do no issune 'oPerallons.' or
do:not
^.' ap media such as Hines, tapes, discs, drums .
_
-
re
rae;ppela?orns' as quickly ft possible
ive
j
.; ref
>(• N
,
.
pay:payed die the kjrtgti, of t" it would
'. (21: beta ttored on sticti inadia or have taksri'to"
resurtfe.'c o4irtims as, Aoickiy. •.,
FEilmkn9lds'usedfoieiectroruiEdata as possible:'i .
- -
.
:. ar
plesslrng
eo etrGilicatly donteolied equip-
f.`. .,, F •. „y
Y `
f
< ,.:.:. a .` r. ...
`+ •`"'
` :^ We will pay for covered loss within 30 days
'
weno(:"thie
swomproof oflass: if.
,
COveredCause btl ogedama
ges a cdrrnWek
on June 1. It takes urttA
Su3dtemtmer•1 to replace
= o
:. a. You have..cornplied with all. the teems -6r`•?ils
Coverage part; and
•* -the computer. and entil October-1 to rdstore
the data that was lost whdn th6 daiitayo' b. (1) We have reached •agreertlept with you ofL. .
occurred. We will only pay-for the Business
An appraisal award has flow made.
6. PremhanAudit .,
.. m Wgya. comptm premirms in :accordance with
•^•'y:. OUr rU105 andfat89.. " .
.:b. The premium'shown for BuWrws* Income Is an..
advance prerphm'which is a deposit premium .
At OWcl= ofeach4uW: per!od eve wig
ebmputo the earned premium fO,*M period,':
Audit praaJUrrls are-dut:and payable cn nodod'
to the first'rlamed. Insurod..'H the; Wn.pf the ..
advance arid 'a dit:prernI6 s paid.far,the Ply
term,ls.grektortlientli@•esiied,prerniiair wewtA.
idl he excess to tt+a Arst Plamad. ur +
G ThefirstWained i oked must keep rddads.ot
'=`?;?. i?1e:MEnnitlonw0needfo':?Amium•catlipafa.
'S' S•e,.;UOrI, IYrd 3erld IJIS;eopbS Et.:afdr.thilga 8S, WB•'
mayrequft
;1. 'perafbgiass' +ht aetlvittes oo-
edft
`2 'tDeriod of Restoraatioii• means the period of time
ithat
a.' Begins with the date of dlrs.-t Physical loss or
damage' caused -by .or resulting from any
• Covered Cause of Loss.at the desaihed prem_
.. fsas: and ? :" •
b. Ends on the,date'when the OrbpoM at the
described premises stwuld'be repaired,'rebullt
or replaced•wfth reasonable speed and similar
qty
'Period gr.restoiatim, does riot include any Incn9as-
ed'periud,required.due to'ttle entoreement of arty
' ordlrrarfc90r'tawttiat:'i'
".(1) egulates the constnwirgi: U4 cr:repalr, or
requires the tea trg dowh'6.81# roperty; or
R6g6Ires any insured or'Qthers? to 'test for.
monitor. clean?rp.;relCi".cdmain:•treat; .
:detoxify a( rre!rtralixa:"of'At arrgway'iegm ..•..
.to, orImois thet dfacts, n-ool opufants.' '
The ezpiiatton ddieyor thlsSOOk ..wij. not dd,jl ark the r..-
`.-poriodofterdratidn'
'polkdsrttgl , 'eans anjr•aa :flquid. gsi6ous•or.
ttr riiiattrtifaiiEwecVMarnino Yicrudiitp'Siholo?',
vapor. 'soot, "fies. riclds.;alyaPs .;, ,. and.
waste.'•Waste Yrdudes" riatefta[t?o b'erecyc"..
iecorKfitiorred ar reclairrtedi: : <, ?•: .
PREFERRED BUSINESS PLUS
ENDORSEMENT
°s endorsement modifies insurance provided under the following:
BUILDING AND PERSONAL PROPERTY COVERAGE FORM
CAUSES OF LOSS - SPECIAL FORM
COMMERCIAL GENERAL LIABILITY COVERAGE FORM
A. BUILDING AND PERSONAL PROPERTY COVERAGE FORM - Form CP 00 10 is amended as shown:
1. The provision relating to "within 100 feet of the described premises" contained in sections A.1.a.(5)(b), A.1.1b. and
A.1.c.(2) are revised to read "within 500 feet of the described premises".
2. The following Additional Coverage, Coverage Extensions, Limits of Insurance and Loss Conditions in the
Building and Personal Property Coverage Form are amended as shown:
Section Coverage Description The most we will pay
provision is increased to:
A.4.c. Fire Department Service Charge $ 3,000
Newly Acquired or Constructed Property:
A.5.a. (1) Building $1,000
000
A.S.a. (2) Your Business Personal Property ,
$ 500,000
A.5.a. (3b) Insurance will end: "30 days" is replaced by "60 days",
Personal Effects and Property of Others:
A.5.b. (1) Personal Effects owned by you, your officers, partners and employees $ 5,000
A.5.b. (2) Personal Property of others In your care, custody or control $ 5,000
A.S.c. Valuable Papers and Records - Cost of Research $ 10,000
A.5.d. Property Off-Premises $ 15,000
A.5.e. Outdoor Property $ 5,000, but not
more than $500 on any
one tree, shrub or plant
C. Limits of Insurance - Outdoor signs attached to buildings $ 5,000
E.7.b. Valuation - This provision Is changed to read $5,000 or less
3. The following coverages are added Abditional
Coverages under section A4.:
e. Arson and Theft Information - We will pay
the expenses to provide a reward for informa-
tion leading to:
Costs incurred in advertising the reward are
included. The most we will pay under this pro-
vision Is $5,000. This limit applies per occur-
rence regardless of the number of persons pro-
viding information.
f. Business Personal Property Limit -
(1) An arson conviction in connection with a Seasonal Automatic Increase - The limit of
covered fire; or insurance for Your Business Personal
Property will automatically increase by 25%
(2) A conviction in connection with theft of to provide for seasonal variations. This
Your Business Personal Property. increase will apply only if the limit of insur-
S'T'A'T'E AUTW
17
ante shown for Your Business Personal
Property in the declarations is at least 100%
of your average monthly values during the
lesser of.
(1) The 12 months immediately preceding
the date the loss or damage occurs; or
(2) The period of time you have been in busi-
ness as of the date the loss or damage
occurs.
g. Fire Extinguisher Recharge - We will pay for
your expense to recharge portable fire extin-
guishers used to fight a fire at the premises
described in the Declarations or at immediately
adjacent premises which expose your property
to loss. The most we will pay under this provi-
sion Is $2,500.
4. The following six coverages are added to the
Coverage Extensions under Section A.S.:
f. Accounts Receivable - You may extend the
insurance that applies to Your Business
Personal Property to apply to accounts
receivable. We will pay:
(1) All amounts due you from your customers
that you are unable to collect;
(2) Interest charges on any loan required to
offset amounts you are unable to collect
pending our payment of these amounts;
(3) Collection expenses in excess of your
normal collection expenses that are made
necessary by loss or damage; and
(4) Other reasonable expenses that you Incur
to re-establish the records of your
accounts receivable;
that result from direct physical loss or dam-
age by any covered Cause of Loss to your
records of accounts receivable. This Insur-
ance applies to accounts receivable while:
(1) On premises scheduled in the
Declarations of this policy;
(2) While being conveyed outside the
premises; or
(3) While temporarily at other premises.
We will not pay for loss or damage caused by
or resulting from electrical or magnetic injury,
disturbance or erasure of electronic record-
ings that Is caused by or results from:
MC-64 (07/96)
(1) Programming errors or faulty machine
instructions;
(2) Faulty installation or maintenance of data
processing equipment or component
parts;
But we will pay for direct loss or damage
caused by lightning.
The most we will pay under this Extension is
$25,000 at each described premises.
g. Back Up of Sewers or Drains - You may
extend the insurance that applies to Covered
Property to apply to loss or damage to your
property caused by water that:
(1) backs up through sewers or drains; or
(2) Enters into and overflows from within a;
(a) sump pump;
(b) sump pump well; or
(c) other type system;
designed to remove subsurface water
from the foundation area. -The most we
will pay for loss or damage under this
Extension Is $10,000. Exclusion 1.g.(3),
within the Causes of Loss, Special Form,
shall not apply to this coverage.
h. Consequential Damage - You may extend
the insurance that applies to Your Business
Personal Property to apply to the consequen-
tial loss of your undamaged product part or
parts. Consequential damage means a part
or parts of your product are physically lost or
damaged by a covered cause of loss causing
the part or parts that are undamaged to be
unmarketable as a complete product. The
most we will pay for loss or damage under
this Extension is $10,000 in any one occur-
rence.
Extra Expense - We will pay the actual and
necessary Extra Expense you sustain due to
direct physical loss or damage to property at
the premises described In the declarations,
including personal property in the open (or in
a vehicfe) within 500 feet, caused by or result-
ing from any Coverer] Cause of Loss.
The most we will pay for loss or damage under
this extension is $10,000
Extra Expense means necessary expenses you
Incur during the 'period of restoration' that you
would not have Incurred if there had been no'
direct physical loss or damage to property:
(1) To avoid or minimize the suspension of
business and to continue:
a) Your business activities occurring at
the described premises; or
(b) Your business activities (as Occurring
at the described premises) at
replacement premises or at tempo-
rary locations, including:
(0 relocation expense; and
(I) costs to equip and operate the
replacement or temporary loca-
tion;
(2) To minimize the suspension of business if
you cannot continue with your business
at the described premises;
(3) (a) To repair or replace any property, or
(b) To research, replace or restore the
lost Information on damaged valuable
papers and records; to the extent it
reduces the amount of loss that oth-
erwise would have been payable
under this coverage.
'Period of restoration' means the period
of time that:
(1) begins with the date of direct
physical loss or damage caused
by or resulting from any Covered
Cause of Loss at the described
premises; and
(2) ends on the date when the prop-
erty at the described premises
should be repaired, rebuilt or
replaced with reasonable speed
and similar quality.
'Period of restoration' does not include
any increased period required due to the
enforcement of any law that regulates the
construction, use or repair, or requires
the tearing down of any property. The
expiration date of this policy will not cut
short the 'period of restoration.-
). Fine arts - You may extend coverage that
applies to Your Business Personal Property to
cover loss or damage to paintings, etchings,
pictures, tapestries, art glass windows and
-Mr-RA In7inct
other bona fide works of art or rarity, having
historical values or artistic merit. This
Extension is subject to the following:
(1) Loss or damage was caused by a
Covered Cause of Loss;
(2) The most we will pay for loss or damage
under this extension Is $10,000 at each
described premises;
(3) Item 3.c. In Section C. LIMITATIONS, In
the Causes of Loss - Special Form, per-
taining to breakage, does not apply to
this coverage; and
(4) The following is added to Item 7.,
Valuation, of Section E. LOSS CONDI-
TIONS, in the Building and Personal
Property Coverage Form: Fine Arts at
market value at the time of loss or dam-
age.
k. Lock Replacement - You may extend the
insurance that applies to Covered Property to
pay for expenses incurred to replace door
locks or tumblers of your described premises
due to theft of your door keys. Item 1.e. in
Section C. LIMITATIONS, in the Causes of
Loss - Special Form, shall not apply to this
coverage. The most we will pay under this
extension is $1,000 in any one occurrence.
B. CAUSES OF LOSS - SPECIAL FORM - Form
CP 10 30 is amended as shown:
1. Item 2. of Section C. LIMITATIONS, pertaining to
BUILDING GLASS, is replaced by the following:
2. We will not pay more for loss of or damage to
glass that Is part of a building or structure
than $500 for each plate, pane, multiple plate
insulating unit, radiant or solar heating panel,
jalousie, louver or shutter. VV will not pay
more than $5,000 for all loss of or damage to
building glass of all types (plain, mosaic art or
stained) that occurs at any one time.
This Limitation does not apply to loss or damage
by the 'specified causes loss,' except vandal-
ism.
2. Items 1.a. and 1.c. of Section E. ADDITIONAL
COVERAGE EXTENSIONS, pertaining to PROP-
ERTY IN TRANSIT, are replaced by the follow-
ing:
a. You may extend the insurance provided by
this Coverage Part to apply to Your Business
Personal Property while in the care, custody
" or cohtrol of your salespersons or in transit.
more than 500 feet from the described
premises. Property must be In or on a motor
vehicle you own, lease or operate while
between points in the coverage territory.
c. The most we will pay for loss or damage
under this Extension is:
(1) $2,000 for property in the care, custody
or control of your salespersons.
(2) $5.000 for property in transit;
C. COMMERCIAL GENERAL LIABILITY COVERAGE
FORM - Form CG 00 01 is amended as follows:
1. Paragraph 2.9.(2)(a), in SECTION I - COVERAGE
A•, pertaining to non-owned watercraft, is
changed as shown:
(a) Less than 50 feet long; and
2. Paragraphs 2 and 4 of the SUPPLEMENTARY
PAYMENTS Section are changed as shown:
2. Up to $500 -for cost of ball bonds required
because of accidents or traffic law violations
arising out of the use of any vehicle to which
the Bodily Injury Liability Coverage applies.
We do not have to furnish these bonds.
4. All reasonable expenses incurred by the
insured at our request to assist us in the
investigation or defense of the claim or "suit,"
including actual loss of earnings up to $500 a
day because of time off from work.
3. SECTION III - LIMITS OF INSURANCE is amend-
ed as follows:
a. Medical Expense Limit - The Medical
Expense limit of $5,000 indicated on the
Declarations is increased to $10,000.
MC-64 (07/96)
b. Paragraph 6. pertaining to the Fire Damage
Limit is deleted and replaced with the follow-
ing:
6. Subject to S. above, the Limits below
change the Fire Damage Limit of $50,000
shown on the Declarations and are the
most we will pay under Coverage A for
damages because of 'property damage-
to premises, while rented to you or tem-
porarily occupied by you, with permission
of the owner
a. $100,000 for damages arising out of
any one fire or explosion.
b. $25,000 for water damage legal Ilabili-
ty arising out of any one occurrence.
4. SECTION IV - COMMERCIAL GENERAL LABILI-
TY CONDITIONS is amended as follows:
Items e. and f. are added to 2. Duties In the
Event of Occurrence, Offense, Claim Or Suit, as
shown:
e. The requirement in Condition 2.a. applies only
when the "occurrence" or offense is known to:
(1) You, if you are an individual;
(2) A partner, if you are a partnership; or
(3) An "executive officer" or insurance man-
ager, If you are a corporation.
I. The requirement in Condition 2.b. will not be
breached unless the breach occurs after such
claim or "suit" is known to:
(1) You, if you are an individual;
(2) A partner, if you are a partnership; or
(3) An 'executive officer' or insurance man-
ager, if you are a corporation.
Preferred Business Policy
mr COMMON POLICY CONDITIONS
.h the exception of any Inland Marine Coverage Part, which contains it's own Common Policy Conditions, All Coverage
Parts included in your Preferred Business Policy are subject to the following conditions. Subject to the laws of your state,
some conditions may be changed by the attachment of a state amendatory endorsement.
A. CANCELLATION
3. Recommend changes.
1. The first Named Insured shown in the Declarations
may cancel this policy by mailing or delivering to
us advance written notice of cancellation.
2. We may cancel this policy by mailing or delivering
to the first Named Insured written notice of can-
cellation at least:
a. 10 days before the effective date of cancella-
tion If we cancel for nonpayment of premium;
or
b. 30 days before the effective date of cancella-
tion if we cancel for any other reason.
3. We will mail or deliver our notice to the first Named
Insured's last mailing address known to us.
4. Notice of cancellation will state the effective date
of cancellation. The policy period will end on that
date.
5. If this policy is cancelled, we will send the first
Named Insured any premium refund due. If we
cancel, the refund will be pro rata. If the first
Named Insured cancels, the refund may be less
than pro rata. The cancellation will be effective
even if we have not made or offered a refund.
6. If notice is mailed, proof of mailing will be sufficient
proof of notice.
B. CHANGES
This policy contains all the agreements between you
and us concerning the insurance afforded. The first
Named Insured shown in the Declarations is autho-
rized to make changes in the terms of this policy with
our consent. This policy's terms can be amended or
waived only by endorsement issued by us and made a
part of this policy.
C. EXAMINATION OF YOUR BOOKS AND
RECORDS
We may examine and audit your books and records as
they relate to this policy at any time during the policy
period and up to three years afterward.
D. INSPECTIONS AND SURVEYS
We have the right but are not obligated to:
1. Make inspections and surveys at any time;
2. Give you reports on the conditions we find; and
Any inspections, surveys, reports or recommenda-
tions relate only to insurability and the premiums to be
charged. We do not make safety Inspections. We do
not undertake to perform the duty of any person or
organization to provide for the health or safety of
workers or the public. And we do not warrant that
conditions:
1. Are safe or healthful; or
2. Comply with laws, regulations, codes or standards.
This condition applies not only to us, but also to any
rating, advisory, rate service or similar organization
which makes insurance Inspections, surveys, reports
or recommendations.
E. PREMIUMS
Tne first Named Insured shown In the Declarations:
1. Is responsible for the payment of all premiums; and
2. Will be the payee for any return premiums we gay.
F. TRANSFER OF YOUR RIGHTS AND
DUTIES UNDER THIS POLICY
Your rights and duties under this policy may not be
transferred without our written consent except In the
case of death of an individual named insured.
If you die, your rights and duties will be transferred to
your legal representative but only while acting within
the scope of duties as your-legal representative. Until
your legal representative is appointed, anyone having
proper temporary custody of your property will have
your rights and duties but only with respect to that
property.
G. INSTALLMENT PAYMENTS
If you have elected to pay the premium on this policjt;
in installments and you fail to pay an installment when
due, we will assume you no longer want the insurance.'
In such event we will issue you a notice of cancellation
as set forth under Policy Conditions. Such notice will
specify the date and time of cancelation. If we receive
an installment payment after the date of cancellation,
we may, subject to the laws of your state, reinstate
your policy, issue you a new policy with a new policy
period or return the late payment to you.
PBP-15 f7-981
COMMERCIAL PROPERTY CONDITIONS
The Commercial Property Coverage Part is subject to the following conditions, the Common Policy Conditions and applica.
ble Loss Conditions and Additional Conditions in Commercial Property Coverage Forms.
A. CONCEALMENTS MISREPRESENTATION
OR FRAUD
This Coverage Part is void in any case of fraud by you
as it relates to this Coverage Part at any time. It is also
void if you or any other insured, at any time, intention-
ally conceal or misrepresent a material fact concern-
ing:
1. This Coverage Part;
2. The Covered Property;
3. Your interest in the Covered Property, or
4. A claim under this Coverage Part.
B. CONTROL OF PROPERTY
Any act or neglect of any person other than you
beyond your direction or control will not affect this
insurance.
The breach of any condition of this Coverage Part at
any one or more locations will not affect coverage at
any location where, at the time of loss or damage, the
breach of condition does not exist.
INSURANCE UNDER TWO OR MORE
COVERAGES
If two or more of this policy's coverages apply to the
same loss or damage, we will not pay more than the
actual amount of the loss or damage.
D. LEGAL ACTION AGAINST US
No one may bring a legal action against us under this
Coverage Part unless:
1. There has been full compliance with all of the terms
of this Coverage Part; and
2. The action is brought within 2 years after the date
on which the direct physical loss or damage
occurred.
E. LIBERALIZATION
If we adopt any revision that would broaden the cov-
erage under this Coverage Part without additional pre-
mium within 45 days prior to or during the policy peri-
od, the broadened coverage will immediately apply to
this Coverage Part.
NO BENEFIT TO BAILEE
No person or organization, other than you, having cus-
tody of Covered Property will benefit from this insur-
ance.
Page 2 of 7
F.-L. . .
G.
OTHERINSURANCE `
1. You may have other insurance subject to the same i
plan, terms, conditions and provisions as the
insurance under this Coverage Part. If you do, we
will pay our share of the covered loss or damage.
Our share is the proportion that the applicable
Limit of Insurance under this Coverage Part bears
to the Limits of Insurance of all insurance covering
On the same basis.
2. If there is other insurance covering the same loss j
or damage, other than that described in 1. above,
we will pay only for the amount of covered loss or
damage in excess of the amount due from that
other insurance, whether you can collect on it or
not. But we will not pay more than the applicable
Limit of Insurance.
H. POLICY PERIOD, COVERAGE TERRITORY
Under this Coverage Part:
1. We cover loss or damage commencing:
a. During the policy period shown in the
Declarations; and
b. Within the coverage territory.
2. The coverage territory is:
a. The United States of America (including its ter-
ritories and possessions);
b. Puerto Rico; and
c. Canada.
I. TRANSFER OF RIGHTS OF RECOVERY
AGAINST OTHERS TO US
If any person or organization to or for whom we make
payment under this Coverage Part has rights to recov-
er damages from another, those rights are transferred
to us to the extent of our payment. That person or
organization must do everything necessary to secure
our rights and must do nothing after loss to impair
them. But you may waive your rights against another
party in writing:
1. Prior to a loss toyourCovered Property or Covered
Income.
2. After a loss to your Covered Property or Covered
Income only 'd, at time of loss, that party is one of
the following:
a. Someone insured by this insurance;
b. A business firm:
(1) Owned or controlled by you; or
(2) That owns or controls you; or
c. Your tenant.
This will not restrict your insurance.
PROVI$IONS APPLICABLE TO CRIME COVERAGE PART
(Except Coverage Forms K, L, M & N)
.,ous provisions in this policy restrict coverage. Read the
entire policy carefully to determine rights, duties and what b. The Covered Proerty
p'
Is or Is not covered. c. Your interest in the Covered Property; or
Throughout this policy the words 'you' and 'your" refer to d. A claim under this insurance.
the Named Insured shown in the Declarations. The words
'we
' 'us' a
d '
' 2. Consolidation-Merger. If through consolidation
,
n
our
refer to the Company providing this
insurance or merger with, or purchase of assets of
some
. ,
other entity:
Words and phrases in quotation marks are defined in the a. Any additional persons become 'employees;'or
policy. b. You acquire the use and control of any addi-
Unless stated otherwise In any Crime Coverage Form,
Declaratio tional 'premises;'
ns or endorsement, the following General
Exclusions, General Conditions and General Definitions
l any insurance afforded for 'employees' or'prem-
ises' also applies to those additi
l *
'
app
y to all Crime coverage fors forming part of this policy. ona
employees
and 'premises,' but only if you:
A. GENERAL EXCLUSIONS a. Give us written notice within 30 days thereafter,
and
We will not pay for loss as specified below: b. Pay us an additional premium.
1. Acts Committed by You or Your Partners: Loss 3. Coverage Extensions: Unless stated otherwise in
resulting from any dishonest or criminal act com- the Coverage Form, our liability under any
miffed by you or any of your partners whether act- Coverage
u
a
is part of, not
addition to
Ing alone or in collusion with other persons. f Ins
r
nc
e
,
the Limit urance applying to the Coverage or
2. Governmental Action: Loss resulting from seizure Coverage Section.
or destruction of property by order of govemmen-
tal authorit 4. Discovery Period for Loss: We will pay only for
cov
d
y.
3. Indirect Loss: Loss that is an indirect result of an ere
loss discovered no later than one year
from the end of the policy period.
y
act or 'occurrence' covered by this insurance
including, but not limited to
loss resultin
from: 5. Duties in the Event of Loss: After you discover a
loss or a situation that ma
l
,
g
a. Your inability to realize income that you would y resu
t in loss of, or loss
from damage to, Covered Property you must:
have realized had there been no loss of, or loss a. Notify us as soon as possible
from damage to, Covered Property,
b. Payment of damages of any t
e for whi
h .
b. Submit to examination under oath at our
re
uest a
d
i
yp
c
you
are legally liable. But, we will pay compen- q
n
g
ve us a signed statement of your
answers.
satory damages arising directly from a loss
covered under this insurance c. Give us a detailed, swom proof of loss within
.
c. Payment of costs, fees or other experises you
incur in establishing either the existence or the 120 days.
d. Cooperate with us in the investigation and set-
amount of loss under this Insurance. t any claim.
4. Legal Expenses: Expenses related to any legal 6. Joint t Insured d
action. a. If more than one Insured is named In the
5. Nuclear. Loss resulting from nuclear reaction Declarations, the first named Insured will act for
,
nuclear radiation or radioactive contamination
or itself and for every other Insured for all -
,
any related act or incident. es
nsure nsured
this insurance. If the first named I
6. War and Similar Actions: Loss resulting from war,
h ceases
to be covered, then the next
named
Insured w
ill become the first named I
w
ether or not declared, warlike action, insurrec-
tion, rebellion or revolution, or any related act or nsured.
b. If any Insured or partner
officer
of that
incident.
any i
Insured has knowledge of any
nformation
rele-
vant to this insurance, that knowledge is con-
B. GENERAL CONDITIONS' sidered knowledge of every Insured.
1. Concealment, Misrepresentation or Fraud: This
i c. An 'employee' of any Insured is considered to
be an 'employee' of every Insured
nsurance is void in any case of fraud by you as it
relates this this insurance at any time. It is also void .
d. If this insurance or any
its coverages is can-
if you or any other insured, at any time, intentional) celled or terminated
as
as
any Insured, loss
conceal or misrepresent a material fact concerning: Insured is s
sustained by that
covered only if o
a. This insurance; f
covered no later than one year from the data e of
that cancellation or termination.
e. We will not pay more for loss sustained, by '
more than one Insured than the amount we
would pay if all the loss had been sustained by
one Insured.
7. Legal Action Against Us: You may not bring any
legal action against us involving loss:
a. Unless you have complied with all the terms of
this insurance; and
b. Until 90 days after you have filed proof of loss
with us; and
c. Unless brought within 2 years from the date
you discover the loss.
8. Liberalization: If we adopt any revision that would
broaden the coverage under this insurance without
additional premium within 45 days prior to or dur-
ing the policy period, the broadened coverage will
immediately apply to this insurance.
9. Loss Covered Under More Than One Coverage
of This Insurance: If two or more coverages of
this insurance apply to the same loss, we will pay
the lesser of
a. The actual amount of loss; or
b. The sum of the limits of insurance applicable to
those coverages.
10. Loss Sustained During Prior Insurance
a. If you, or any predecessor In interest, sustained
loss during the period of any prior insurance
that you or the predecessor in interest could
have recovered under that insurance except
that the time within which to discover loss had
expired, we will pay for It under this insurance,
provided:
(1) This insurance became effective at the
time of cancellation or termination of the
prior Insurance; and
(2) The loss would have been covered by this
insurance had It been in effect when the
acts or events causing the loss were com-
mitted or occurred.
b. The Insurance under this Condition is part of,
not In addition to, the Limits of Insurance
applying to this insurance and Is limited to the
lesser of the amount recoverable under.
(1) This insurance as of its effective date; or
(2) The prior insurance had it remained in
effect
11. Loss Covered Under This Insurance and Prior
Insurance Issued by Us or Any Affiliate:
If any loss is covered:
a. Partly by this insurance; and
b. Partly by any prior cancelled or terminated
Insurance that we or any affiliate had issued to
you or any predecessor in interest;
the most we will pay is the larger of the amount
recoverable under this insurance or the prior
insurance.
12 Non-Cumulation of Limit of Insurance: Regard-
less of the number of years this insurance remains
in force or the number of premiums paid, no Limit
of Insurance cumulates from year to year or period
to period.
13. Other Insurance: This insurance does not apply
to loss recoverable or recovered under other insur-
ance or indemnity. However, if the limit of the
other insurance or indemnity is insufficient to cover
the entire amount of the loss, this insurance will
apply to that part of the loss, other than that falling
within any deductible amount, not recoverable or
recovered under the other insurance or indemnity
.
However, this insurance will not apply to the
amount of loss that is more than the applicable
Unit of Insurance shown in the Declarations.
14. Ownership of Property; Interest Covered- The
property covered under this insurance is limited to
property:
a. That you own or hold; or
b. For which you are legally liable.
However, this insurance is for your benefit only. It
provides no rights or benefits to any other person
or organization.
15. Policy Period
a. The Policy Period Is shown in the Declarations.
b. Subject to the Loss Sustained During Prior
Insurance condition, we will pay only for loss
that you sustain through acts committed or
events occurring during the Policy Period.
16. Records: You must keep records of all Covered
Property so we can verify the amount of any loss.
17. Recoveries
a. Any recoveries, less the cost of obtaining them,
made after settlement of loss covered by this'
Insurance will be distributed as follows:
(1) To you, until you are reimbursed for any
loss that you sustain that exceeds the
Limit of Insurance and the Deductible
Amount, if any;
(2) Then to us, until we are reimbursed for the
settlement made;
(3) Then to you, until you are reimbursed for
that part of the loss equal to the
Deductible Amount, if any.
b. Recoveries do not Include any recovery.
(1) From insurance, suretyship, reinsurance,
security or indemnity taken for our benefit;
or
(2) Of original 'securities' after duplicates of
them have been issued.
18. Territory: This insurance covers only acts com-
mitted or events occurring within the United States
of America, U.S. Virgin Islands, Puerto Rico, Canal
Zone, or Canada.
i
Page 4 of 7
?1
19, Transfer of Your Rights. of Recovery Against b. We may, at our option, pay for loss of, or loss
others to Us: You must transfer to us all your from damage to, property other than "money:'
rights of recovery against any person or organiza- (1) In the 'money" of the country in which the
lion for any loss you sustained and for which we loss occurred; or
have paid or settled. You must also do everything
necessary-to secure those rights and do nothing
(2) In the United States of America dollar
after loss to impair them. equivalent of the 'money' of the country
in which the loss occurred determined by
20. Valuation-Settlement the rate of exchange on the day the loss
a. Subject to the applicable Limit of Insurance was discovered.
provision we will pay for c. Any property that we pay for or replace be-
(1) Loss of 'money' but only up to and comes our property.
including its face value. We may, at our
option, pay for loss of 'money' issued by C. GENERAL DEFINITIONS
any country other than the United States 1. "Employee" means:
of America: a. Any natural person:
(a) At face value in the 'money" Issued
(1) While in your service (and for 30 days after
that country; or
by
of service);
and
(b) In the United States of America dollar
equivalent determined by the rate of (2) Whom hom you you
compensate
directly by salary,
exchange on the day the loss was wages or commissions; and
discovered.. (3) Whom you have the right to direct and
(2) Loss of 'securities' but only up to and
control while performing services for you;
including their value at the close of busi- or
ness on the day the loss was discovered. b. Any natural person employed by an employ-
We may, at our option: ment contractor while that person is subject to
(a) Pay the value of such 'securities' or your direction and control and performing ser-
replace them i kind, In which event vices for you excluding, however, any such per-
you must assign to us all your rights, son while having care and custody of property
'
'
title and interest in and to those outsidethe
premises.
'securities;' But 'employee' does not mean any.
(b) Pay the cost of any Lost Securities (1) Agent, broke, factor, commission mer-
Bond required in connection with chant, consignee, independent contractor
issuing duplicates of the 'securities.' or representative of the same general
However, we will be liable only for the character, or
payment of so much of the cost of the (2) Director or trustee except while perform-
bond as would be charged for a bond ing acts coming within the scope of the
having a penalty not exceeding the usual duties of an employee.
lesser of the:
"Money" means:
I. Value of the 'securities' at the
close of business on the day the a. Currency, coins and bank notes in current use
loss was discovered; or and having a face value; and
ii. Limit of Insurance. b. Travelers checks, register checks and money
(3) Loss of, or loss from damage to, 'proper- orders held for sale to the public.
ty other than money and securities" or 3. "Property Other Than Money and Securities"
loss from damage to the "premises' for means any tangible property other than "money"
not more than the: and 'securities' that has intrinsic value but does
(a) A
h value
f th
t
t
l not include any property listed in any Coverage
cas
c
ua
o
e proper
y on Form as Property Not Covered.
the day the loss was discovered; 4. "Securities" means negotiable and non-nego-
(b) Cost of repairing the property or
' tiable instruments or contracts representing either
premises;' or money" or other property and includes:
(c) Cost of replacing the property with a. Tokens, tickets, revenue and other stamps
property of like kind and quality. (whether represented by actual stamps or
We may, at our option, pay the actual cash unused value in a meter) in current use: and
value of the property or repairer replace it. b. Evidences of debt issued in connection with
If we cannot agree with you upon the credit or charge cards, which cards are not
actual cash value or the cost of repair or issued by you;
replacement. the value or cost will be but does not include "money."
determined by arbitration.
ENDORSEMENTS MADE PART OF'COVERAGE PARTS AS INDICATED
NUCLEAR ENER
GY LIABILITY EXCLUSION ENDORSE-
MENT (Broad Form)
his endorsement modifies insurance under Commercial
General Liability, Liquor Liability & Commercial Auto
Coverage Parts.
1. The insurance does not apply:
A. Under any Liability Coverage, to 'bodily injury" or
'property damage:'
(1) With respect to which an "insured' under the
policy is also an insured under a nuclear ener-
9Y liability policy issued by Nuclear Energy
Liability Insurance Association, Mutual Atomic
E
Insurance nergy Liability Underwriters, Nuclear
Association of Canada or any of
ors,orwould can insured under
any such policy but for its termination upon
exhaustion of its limit of liability; or
(2) Resulting from the 'hazardous properties' of
"nuclear material" and with respect to which
(a) any person or organization is required to
maintain financial protection pursuant to the
Atomic Energy Act of 1954, or any law
amendatory thereof, or (b) the "insured" is, or
had this policy not been issued would be, entl-
tled to indemnity from the United States of
America, or any agency thereof, under any
agreement entered into by the United States of
America, or any agency thereof, with any per-
son or organization.
B. Under any Medical Payments coverage, to expens-
es incurred with respect to -bodily injury' resulting
from the 'hazardous properties' of "nuclear mater-
ial' and arising out of the operation of a 'nuclear
facility" by any person or organization.
C. Under any Liability Coverage, to 'bodily injury- or
'property damage" resulting from hazardous
properties' of 'nuclear material," if
(1) The 'nuclear material" (a) is at any "nuclear
facility' owned by, or operated by or on behalf
of, an 'insured' or (b) has been discharged or
dispersed therefrom;
(2) The 'nuclear material- is contained in 'spent
fuel' or 'waste' at any time possessed, han-
dled, used, processed, stored, transported or
disposed of by or on behalf of an 'insured;- or
(3) The 'bodily Injury- or 'Property damage" aris-
es out of the furnishing by an 'insured' of ser-
vices, materials, parts or equipment in con-
nection with the planning, construction, main-
tenance, operation or use of any "nuclear facil-
fty," but if such facility is located within the
United States of America, its territories or pos-
sessions or Canada, this exclusion (3) applies
only to "property damage- to such 'nuclear
facility" and any property thereat.
2. As used in this endorsement:
"Hazardous properties" include radioactive, toxic or
explosive properties;'
"Nuclear material' means "source material,- Special
nuclear material" or "by-product material;'
'Source material," "special nuclear material,' and 'by-
product material' have the meanings given them in the
Atomic Energy Act of 1954 or in any law amendatory
thereof;
"Spent fuel' means any fuel element or fuel component,
solid or liquid, which has been used or exposed to radi-
ation in a 'nuclear reactor,"
"Waste" means any waste material (a) containing -by-
,product material" other than the tailings or wastes pro-
duced by the extraction or concentration of uranium or
thorium from any ore processed primarily for its 'source
m
by any person or aterial' content, and (b) resulting from the operation
Included under the first ntwotparagraphs oft the definiti n
of 'nuclear facility.-
'Nuclear facility- means;
(a) Any 'nuclear reactor,'
(b) Any equipment or device designed or used for (1)
separating the isotopes of uranium or plutonium,
(2) processing or utilizing -spent fuel,' or (3) han
cling, processing or packaging 'waste;'
(c) Any equipment or device used for the processing,
fabricating or alloying of "speci
if al nuclear material"
the custody of the at any time the total amount of such material in
such equipment or device "insured*
located consists of or
contains more than 25 grams of plutonium or ura-
nium 233 or any combination thereof, or more
than 250 grams of uranium 235;
(d) Any structure, basin, excavation, premises or
place prepared or used for the storage or dispos-
al of 'waste;'
and-includes the site on which any of the foregoing is locat-
ed, all operations conducted on which site and all premis-
es used for such operations;
'Nuclear reactor- means any apparatus designed or used
to sustain nuclear fission in a self-supporting chain reaction
or to contain a critical mass of fissionable material;
"Property damage" includes all fors of radioactive conta-
mination of property.
CALCULATION OF PREMIUM ENDORSE-
MENT-Applicable to all Coverage Parts
The premium shown in the Declarations was computed
based on rates in effect at the time the policy was issued.
On each renewal, continuation, nr anni
five versary of the effec-
date of this policy, we will compute the premium in
accordance with our rates and rules then in effect.
Page 6 of 7
CONDITIONS APPLICABLE TO STATE A
'IDENDS
u are entitled to the proportionate part of any Policyhold-
er's dividend If declared by our Board of Directors in accor-
dance with its By-Laws.
NOTICE OF POLICYHOLDERS MEETINGS
While your policy is in force, you are one of our members
and are entitled, in person or by proxy, to one vote at all
UTOMOBILE MUTUAL INSURANCE COMPANY
meetings of the members. The annual meeting of the
members is held at 9 o'clock A.M., Columbus time, on the
first Friday of March of each year at our Home Office, 518
East Broad Street, Columbus, Ohio.
NON-ASSESSABLE
This Policy Is non-assessable and the insured shall not be
liable for the payment of any assessment nor for the pay-
ment of any premium other than that stated in this policy.
IN WITNESS WHEREOF, we have caused this policy to be signed by our Secretaryand President at Columbus, Ohio, and
countersigned on the Declarations page by an authorized agent of the State Auto Insurance Companies.
/ Z,• L Secretary P a? Iy ? _
i r? f't President
2. Debris Removal; but if.
a. The sum of direct physical loss or damage
and debris removal expense exceeds the
Limit of Insurance; or
b. The debris removal expense exceeds the
amount payable under the 25% limitation
in the Debris Removal Additional Cover-
age;
we will pay up to an additional $10,000 for
each location in any one occurrence under
the Debris Removal Additional Coverage.
D. DEDUCTIBLE
We will not pay for loss or damage in any one
occurrence until the amount of loss or damage
exceeds the Deductible shown in the Declara-
tions. We will then pay the amount of loss or
damage in excess of the Deductible, up to the
applicable Limit of Insurance, after any de.
duction required by the Coinsurance condition
or the Agreed Value Optional Coverage.
When the occurrence involves loss to more than
one item of Covered Property and more than one
Limit of insurance applies, the Deductible will
reduce the total amount of loss payable if loss to
at least one item is less than the sum of (1) the
Limit of Insurance applicable to that item plus (2)
the Deductible.
Example No. 1:
(This example assumes there is no coinsurance
penalty.)
Deductible: $250
Limit of Insurance - Bldg. 1: $60,000
Limit of Insurance - Bldg. 2: $80.000
Loss to Bldg. 1: $60.100
Loss to Bldg. 2: S90.000
The amount of loss to Bldg. 1 ($60,100) is less
than the sum (560.250) of the Limit of Insurance
applicable to Bldg. 1 plus the Deductible.
The Deductible will be subtracted from the
amount of loss in calculating the loss payable for
Bldg. 1:
$60.100
250
559,850 Loss Payable - Bldg.
The Deductible applies once per occurrence and
therefore is not subtracted in determining the
amount of loss payable for Bldg. 2. Loss payable
for Bldg. 2 is the Limit of Insurance of $80.000.
Total amount of loss payable: $59,850 + 80,000
= 5139. 850
Example No. 2:
(This example, too, assumes there is no
coinsurance penalty.)
The Deductible and Limits of Insurance are the
same as those in Example No. 1.
Loss to Bldg. 1: $70,000 (exceeds Limit
of Insurance plus
Deductible)
Loss to Bldg. 2: 590,000 (exceeds Limit
of Insurance plus
Deductible)
Loss Payable - Bldg. 1: $60,000 (Limit of
Insurance)
Loss Payable - Bldg. 2: $80,000 (Limit of
Insurance)
Total amount of loss payable: 5140,000
E. LOSS CONDITIONS
The following conditions apply in addition to the
Common Policy Conditions and the Commercial
Property Conditions.
1. Abandonment
There can be no abandonment of any prop-
erty to us.
2. Appraisal
It we and you disagree on the value of the
properly or the amount of loss. either may
make written demand for an appraisal or the
loss. In this event, each party will select a
competent and impartial appraiser. The two
appraisers will select an umpire. If they can-
not agree, either may request that selection
be made by a judge of a court having juris-
diction. The appraisers will state separately
the value of the properly and amount of loss.
If they fail to agree, they will submit their dif-
ferences to the umpire. A decision agreed to
by any Iwo will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal
and umpire equally.
If there is an appraisal, we will still retain our
right to deny the claim.
3. Duties In The Event Of Loss or Damage
a. You must see that the following are done
in the event of loss or damage to Covercd
Property:
(1) Nolify the police if a law may have
been broken.
CP 00 10 06 95 Copyright. ISO Commercial
(2) Give us prompt notice of the loss or
damage. Include a description of the
property involved.
(3) As soon as possible, give us a de-
scription of how, when and where the
loss or damage occurred,
(4) Take all reasonable steps to protect
the Covered Property from further
damage, and keep a record of your
expenses necessary to protect the
Covered Property, for consideration in
the settlement of the claim. This will
not increase the Limit of Insurance.
However, we will not pay for any sub-
sequent loss or damage resulting from
a cause of loss that is not a Covered
Cause of Loss. Also, if feasible, set the
damaged property aside and in the
best possible order for examination.
(5) At our request, give us complete in-
ventories of the damaged and undam-
aged property. Include quantities,
costs, values and amount of loss
claimed.
(6) As often as may be reasonably re-
quired, permit us to inspect the prop-
erty proving the loss or damage and
examine your books and records.
Also permit us to take samples of
damaged and undamaged property for
inspection, testing and analysis, and
permit us to make copies from your
books and records.
(7) Send us a signed, sworn proof of loss
containing the information we request
to investigate the claim. You must do
this within 60 days aher our request.
We will supply you with the necessary
forms.
(8) Cooperate with us in the investigation
or settlement of the claim,
b• We may examine any insured under oath,
while not in the presence of any other in-
sured and at such times as may be rea-
sonably required, about any matter
relating to this insurance or the claim, in-
cluding an insured's books and records.
In the event of an examination, an in-
sured's answers must be signed.
4. Loss Payment
a. In the event of loss or damage covered by
this Coverage Form, at our option, we will
either:
(1) Pay the value of lost or damaged
property;
(2) Pay the cost of repairing or replacing
the lost or damaged property, subject
to b. below;
(3) Take all or any part of the property at
an agreed or appraised value; or
(4) Repair, rebuild or replace the property
with other property of like kind and
quality, subject to b, below.
b. The cost to repair, rebuild or replace does
not include the increased cost attributable
to enforcement of any ordinance or law
regulating the construction, use or repair
of any property.
c. We will give notice of our intentions within
30 days after we receive the sworn proof
of loss.
d. We will not pay you more than your finan-
cial interest in the Covered Property.
e. We may ad'ust I
9
5. Recovered Property
If either you or we recover any property after
loss settlement, that party must give the other
prompt notice. At your option, the property
will be returned to you. You must then return
to us the amount we paid to you for the
property. We will pay recovery expenses and
the expenses to repair the recovered prop-
erty, subject to the Limit of Insurance.
asses with the owners of
lost or damaged property if other than
you. If we pay the owners, such payments
will satisfy your claims against us for the
owners' property. We will not pay the
owners more than their financial interest
in the Covered Property.
We may elect to defend you against suits
arising from claims of owners of property.
We will do this at our expense.
We will pay for covered loss or damage
within 30 days after we receive the sworn
proof of loss, if you have complied with all
of the terms of this Coverage Part and:
(1) We have reached agreement with you
on the amount of loss: or
(2) An appraisal award has been made.
Page 6 of 11 Copyright, ISO Commercial Risk Services. Inc.. 1994 ro nn in n<
F V'ILE"ATAFILEISTATE DOM.. Vide
C'.W 01105=01 51 01 PM
Nevi"d 01M7W W 19J0AM
1550 54
ARAFAT MASWADEH,
Plaintiff
V.
NADEEM A. KHAN,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7550 CIVIL TERM
CIVIL ACTION - LAW
PROPOSED ANSWER WITH NEW MATTER OF INTERVENER
STATE AUTO MUTUAL INSURANCE COMPANY
1-3. Admitted.
COUNT I - RECISSION
4. Paragraphs I through 3 of this Answer are incorporated herein by reference.
5. It is admitted that Plaintiff sold said business to Defendant pursuant to an agreement
and also pursuant to the understanding of the parties.
6-7. Admitted.
8-I1. Denied. Conclusions of law are averred to which no answer is required. If an answer
is required, said averments are denied and proof thereof is demanded.
12. It is admitted that Plaintiff requests that the business be returned to him, but it is
denied that Plaintiff is entitled to a return of the business.
WHEREFORE, Intervener, State Auto Mutual Insurance Company, requests that the
Plaintiff's Complaint be dismissed.
COUNT It
13. Paragraphs I through 12 of this Answer are incorporated herein by reference.
14-15. Denied. After reasonable investigation, Intervener, State Auto Mutual Insurance
Company, is without sufficient knowledge or information to admit or deny said averment. Proof
thereof is demanded.
16-17. Conclusions of law are averred to which no answer is required. If an answer is
required, said averments are denied and proof thereof is demanded.
WHEREFORE, Intervener, State Auto Mutual Insurance Company, requests that the
Plaintiff's Complaint be dismissed.
EXHIBIT "B"
NEW MATTER
18. Paragraphs 1 through 17 of this Answer are incorporated herein as new matter.
19. It is believed that the sale of the business by Plaintiff to Defendant was valid and said
sale in effect canceled the insurance policy between Plaintiff and Intervener, State Auto Mutual
Insurance Company.
20. Neither Plaintiff nor Defendant specifically advised Intervener, State Auto Mutual
Insurance Company, that said sale of the business had occurred.
21. Because the Plaintiffsold his business to Defendant on or about August 26, 1999, the
policy of insurance between Intervener, State Auto Mutual Insurance Company, and Plaintiff was
terminated. A copy of said policy is attached hereto as Exhibit "A."
22. Defendant never requested a commercial property insurance policy from Intervener,
State Auto Mutual Insurance Company.
WHEREFORE, Intervener, State Auto Mutual Insurance Company, requests that the
Plaintiff's Complaint be dismissed.
Respectfully submitted,
MARTSON DEARDDORFF WILLIAMS & OTTO
B 9"j
?O
Daniel K. Deardorff, Esquire
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
Attorneys for Intervener
State Auto Mutual Insurance Company
Date:
ol%a7/00' 10:42 PAX 717+2420 XD70 DOE
3?9$TFiCATION
Robert Krebs, who is Senior ClaimExardacr of State Auto Mutual Insurance Company and
acknowledges that he has the authority to execute this Verification in behalf of State Auto Mutual
Insurance Company certifies that the foregoing Answer is based upon infomtationwhieh has been
gathered by my counsel in the preparation of the lawsuit, The language of this Answer is that of
counsel and not my own I have read the document and to the extent that the Answer is based upon
information which I have given to my counsel, it is true and correct to the best ofmy knowledge,
information and belief. To the extent that the content ofthe Answer is that of counsel, I have relied
upon counsel in making this Verification.
This statement and Verification are made subject to thepenalties of 18 Pa. C.S. Section 4904
relating to ttnswom falsification to authorities, which provides that if T make knowingly Use
avennents, I may be subject to criminal penalties.
State Auto Mutual losuranco company
Robert Krebs
PVILMWAT4MLWrATLD001x l
CERTIFICATE OF SERVICE.
I, Tricia D. Eckenroad, an authorized agent for Manson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Answer was served this date by depositing same in the Post
Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows:
Peter B. Foster, Esquire
PINSKEY & FOSTER
121 South Street
Harrisburg, PA 17101
Mr. Nadeem A. Khan
50 West High Street
Carlisle, PA 17013
MARTSON DEARDORFF WILLIAMS & OTTO
By
Tricia D. Eckenroad
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated:
uv a 41 uu ' au: aY t•aa 717+2434850
{.•flU U.1
VEBjE!C- TION
ItabottKrebs, whois Senior Claim Examiner of State Auto Mutant InswranceCompany and
acknowledges that he bas the authority to ex-.cute this Verification in behalf of State Auto Mutual
Insurance Company certifies that the foregoing Petition to Intervene is based upon information
which hes barn gathered by my counsel in the preparation of the lawsuit The language of this
Petition is that of counsel and not my own. I have read the docutnent and to the witent that the
Petition is based upon information which T havo given to mycounscl, it is true and correct to the best
of my knowledge, information and belief. To the extent that the content ofthe Petition is that of
counsel, I have relied upon counsel in making this Verification.
This statement and Verification arc matte subject to the penalties of 18 Pa. C.S. SecticM4904
relating to unworn falsification to authorities, which provides that if I make knowingly false
averments, I may be sabject to criminal penalties.
State Auto Mutual Insurance Company
/. _ k N? A,
Robert Krebs
i MuswTAraasremvocwsa i
RTIFICATE OF SERVICE.
thorized agent for Martson Deardorff Williams & Otto, hereby
ctition to Intervene was served this date by depositing same in
class mail, postage prepaid, addressed as follows:
Peter B. Foster, Esquire
PINSKEY & FOSTER
121 South Street
Harrisburg, PA 17101
Mr. Nadeem A. Khan
50 West High Street
Carlisle, PA 17013
MARTSON DEARDORFF WILLIAMS & OTTO
TriCi D. Eckenroad
Ten East High Street
arlisle, PA 17013
(717) 243-3341
r,
?';
` i?:
r
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r_i
fi.
t.'
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-
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1_: ? 7
Exhibit B
ARAFAT MASWADEH,
Plaintiff
V.
NADEEM A. KHAN,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-7550 CIVIL TERM
ORDER OF COURT
AND NOW, this I'7 day of April, 2000, upon consideration of the Petition To
Intervene by State Auto Mutual Insurance Company, and of the briefs submitted in the
matter, and following oral argument held on April 13, 2000, the petition to intervene is
granted.
BY THE COURT,
Peter B. Foster, Esq.
120 South Street
Harrisburg, PA 1710.1
Attorney for Plaintiff
Hubert X. Gilroy, Esq.
4 N. Hanover Street
Carlisle, PA 17013
Attorney for Defendant
Daniel K. Deardorff, Esq.
Ten East High Street
Carlisle, PA 17013
Attorney for Intervenor
State Auto Mutual Ins. Co.
J es -I e-,y -0.1
C)
:rc
ARAFAT MASWADEH, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
NADEEM A. KHAN,
Defendant NO. 99-7550 CIVIL TERM
J
IN RE: ORAL ARGUMENT SCHEDULED
ORDER OF COURT
= AND NOW, this 6th day of April, 2000, upon
41
.'s leration of the Petition To Intervene by State Auto Mutual
Insurance Company, and the Court having held a hearing on this
date at which certain facts were stipulated to by counsel, in
the person of Peter Foster, Esquire, on behalf of the Plaintiff,
George Faller, Jr., Esquire, on behalf of the Petitioner, and
Hubert X. Gilroy, Esquire, on behalf of the Defendant, and
counsel for Plaintiff having requested oral argument on the
issue of intervention, and the Court having indicated its
interest in the issue of the effect of collateral estoppel in
the case, and counsel having agreed that the only ground for
intervention in this matter would be that contained in
Pennsylvania Rule of Civil Procedure 2327(4), oral argument is
scheduled for Thursday, April 13, 2000, at 8:45 a.m., in
Courtroom No. 1, Cumberland County Courthouse, Carlisle,
Pennsylvania.
Counsel for Defendant, Hubert X. Gilroy,
Esquire, has indicated his joinder in the Petition To Intervene
filed by State Auto Mutual Insurance Company and has indicated
that his appearance at the argument will not be necessary in 1
)
view of the fact that his position will be advanced by counsel '
i r
for the proposed intervenor.
S
i
Peter B. Foster, Esquire
Attorney for Plaintiff
Hubert X. Gilroy, Esquire
Attorney for Defendant
George B. Faller, Esquire
Attorney for Petitioner
srs
By the Court,
J. Wesley Ol r, r., S.
1,00
?-p
I t:?'
ARAFAT MASWADEH, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
NADEEM A. KHAN,
Defendant NO. 99-7550 CIVIL TERM
TRANSCRIPT OF PROCEEDINGS
IN RE: PETITION TO INTERVENE
Proceedings held before the
HONORABLE J. WESLEY OLER, JR., J.
Cumberland County Courthouse, Carlisle, Pennsylvania
on Thursday, April 6, 2000
in Courtroom No. 1
APPEARANCES:
PETER B. FOSTER, Esquire
Attorney for Plaintiff
HUBERT X. GILROY, Esquire
Attorey for Defendant
GEORGE B. FALLER, JR., Esquire
Attorney for Petitioner
1
c-? u
11
J k
1 THE COURT: This is the time and place for a
2 hearing on a Petition To Intervene filed by State Auto Mutual
3 Insurance Company. We will let the record indicate that the
4 Plaintiff is present in court with his counsel, Peter B.
5 Foster, Esquire, and the Defendant is present in court with
6 his counsel, Hubert X. Gilroy, Esquire. Present on behalf of
7 the Petitioner, State Auto Mutual Insurance Company, is
8 George Faller, Jr., Esquire. This question is governed by
9 Pennsylvania Rule of Civil Procedure 2327.
10 Are counsel all in agreement that the only
11 portion of that rule which arguably would authorize the
12 intervention is Item 4?
13 MR. FOSTER: Yes, Your Honor.
14 THE COURT: Mr. Faller, are you also in
15 agreement with that?
16 MR. FALLER: That's correct, Your Honor.
17 MR. GILROY: Yes, sir.
18 THE COURT: Item 4 reads as follows: At any
19 time during the pendency of an action a person not a party
20 thereto shall be permitted to intervene therein subject to
21 these rules if the determination of such action may affect
22 any legally enforceable interest of such person whether or
23 not such person may be bound by a judgment in the action.
24 Do counsel wish to place some facts on the
25 record?
V.
2
D
I MR. FALLER: Yes, Your Honor. I think the
2 parties have talked and have stipulated to the fact that as
3 of December 18th, 1999, when the fire occurred that destroyed
4 the New York Deli and Grocery, that there was a policy of
t.
5 insurance issued to the Plaintiff, Arafat Maswadeh, trading
6 as New York Deli and Grocery with State Auto. That's been
7 admitted in the Answer to the Petition To Intervene, and I
8 think the other stipulation is that the fire did destroy the
9 business on or about that date. j
10 The other stipulation is that both the
11 Plaintiff and the Defendant have made claims against State
12 Auto under the same policy, and, finally, that State Auto at
13 this point has neither accepted or denied those claims.
14 THE COURT: That's stipulated to by all
15 counsel?
16 MR. FOSTER: The only point I would like to
17 make is that the business consists of machinery and equipment
18 and inventory. There is no real estate involved here.
19 THE COURT: With that modification, do all
20 counsel agree with the facts that Mr. Faller recited?
21 MR. GILROY: Yes, Judge.
22 MR. FOSTER: Yes, Your Honor.
23 THE COURT: Mr. Faller, you accept that
24 modification?
25 MR. FALLER: Yes. The building was leased.
3
t
I The policy that's attached to the petition doesn't indicate
2 any building coverage.
3 THE COURT: Are there any other facts that
4 counsel feel I need to make a determination?
5 MR. FOSTER: I respectfully ask the Court's
6 indulgence in this respect. Both Mr. Faller and myself have
7 filed briefs in this case on the issue of whether or not
8 State Auto should be permitted to intervene. It's my
9 understanding that today was simply a hearing at the request
10 of State Auto to put certain facts on the record to
11 substantiate the Petition To Intervene. I would like to have
12 the opportunity to make oral argument on this issue in
13 support of my brief. I'm not prepared right now to do it. I
14 would respectfully ask, with the Court's indulgence, that at
15 some immediate date that we could make oral argument.
16 THE COURT: Do either counsel have objection
17 to scheduling oral argument?
18 MR. GILROY: I vigorously object. Everybody
19 is here today. The brief has been filed. we believe the
20 Plaintiff's position is completely meritless and is going to
21 result in -- if the Plaintiff is successful in advancing
22 their position and the Court accepts that position, we're
23 just going to have other litigation, other time in court.
24 And for the purpose of judicial economy and to keep the
25 parties and the attorneys out of court, we would suggest that
4
a.?
1 Mr. Foster is certainly capable of gathering his thoughts and
2 advancing his position orally to the judge, and we question
3 what he could say to the Court in oral argument that has not
4 already been said in his brief. we don't see any need for
5 this, especially after we've just spent forty-five minutes
6 debating the issue in chambers, Your Honor.
7 MR. FALLER: One of the things that was
8 raised as an objection in our Petition To Intervene, because
9 it was required by the rules to be raised in the petition, we
10 raised the fact that our Petition To Intervene would not
11 cause any undue delay. Plaintiff objected, saying that, yes,
12 this would cause undue delay. I certainly don't have
13 anything to add in open court as far as argument, other than
14 what I have raised in chambers.
15 THE COURT: The problem, of course, is that
16 things in chambers aren - t part of the record.
17 MR. FOSTER: I listed this matter for
18 argument as of March lst. Mr. Deardorff, from Mr. Faller's
19 law firm, wanted this hearing today to put some facts on the
20 record, so I withdrew my praecipe for oral argument as of
21 March 1st. We could have the oral argument tomorrow. I'm
22 asking for some time to prepare for oral argument.
23 THE COURT: The issue that is of interest to
24 me is the collateral estoppel issue, because that seems to me
25 one way that possibly State Auto Mutual Insurance Company
5
t
f.
1 might be affected by a judgment in the case that it is
2 seeking to intervene in. I'm not sure I know the answer to
3 that question at this point anyway, so what I'll do is
4 schedule just a short ten-minute argument within the next
5 week or so.
6 MR. FOSTER: Thanks, Judge.
7 MR. GILROY: Judge, do you need me there,
8 because, frankly, I don't care what Mr. Foster says. Since
9 I'm not going to say anything, unless the Court wants to hear
10 from me, we don't object to this petition and will ride the
11 coat tails or go down in flames with Mr. Faller or Mr.
12 Deardorff, one or the other, only on that issue.
13 THE COURT: How about Thursday, April 13th,
14 at 8:45 a.m.?
15 MR. FOSTER: That's fine, Judge.
16 THE COURT: Mr. Gilroy, if you feel you
17 don't want to participate, that's certainly acceptable to me.
18 MR. GILROY: Thank you, Judge.
19
20
21 Court:)
22
23 consideration of
24 Mutual Insurance
25 on this date at
THE COURT: We'll enter this Order:
(The following Order was entered by the
"AND NOW, this 6th day of April, 2000, upon
the Petition To Intervene by State Auto
Company, and the Court having held a hearing
Nhich certain facts were stipulated to by
6
I counsel, in the person of Peter Foster, Esquire, on behalf of
2 the Plaintiff, George Faller, Jr., Esquire, on behalf of the
3 Petitioner, and Hubert X. Gilroy, Esquire, on behalf of the
4 Defendant, and counsel for Plaintiff having requested oral
5 argument on the issue of intervention, and the Court having
6 indicated its interest in the issue of the effect of
7 collateral estoppel in the case, and counsel having agreed
8 that the only ground for intervention in this matter would be
9 that contained in Pennsylvania Rule of Civil Procedure
10 2327(4), oral argument is scheduled for Thursday, April 13,
11 2000, at 8:45 a.m., in Courtroom No. 1, Cumberland County
12 Courthouse, Carlisle, Pennsylvania.
13 "Counsel for Defendant, Hubert X. Gilroy,
14 Esquire, has indicated his joinder in the Petition To
15 Intervene filed by State Auto Mutual Insurance Company and
16 has indicated that his appearance at the argument will not be
17 necessary in view of the fact that his position will be
18 advanced by counsel for the proposed intervenor."
19 THE COURT: So, we'll see you at that time.
20 If you want to file any further briefs or submit any further
21 briefs, that would be fine, also.
22 (The proceeding was concluded.)
23
24
25
7
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause and that this is a correct transcript of
same.
,??zyt l?iC ?C
Susan Rice Stoner
Official Stenographer
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and directed
to be filed.
c Zc00
Date
l
8
MARTSON DEARm RFF WILLIAMS N OTTO _
M??XI&O
Irvrnoum.n • Nma•Am?xxi
TEN Fa T HIGH STREET
CARLISLE, PENNSYLVANIA 17013
ARAFAT MASWADEH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 99-7550 CIVIL TERM
NADEEM A. KHAN,
Defendant CIVIL ACTION - LAW
ANSWER WITH NEW MATTER OF INTERVENER,
STATE AUTO MUTUAL INSURANCE COMPANY
1-3. Admitted.
COUNT I - RECISSION
4. Paragraphs I through 3 of this Answer are incorporated herein by reference.
5. It is admitted that Plaintiff sold said business to Defendant pursuant to an agreement
and also pursuant to the understanding of the parties.
6-7. Admitted.
8-11. Denied. Conclusions of law are averred to which no answer is required. If an answer
is required, said averments are denied and proof thereof is demanded.
12. It is admitted that Plaintiff requests that the business be returned to him, but it is
denied that Plaintiff is entitled to a return of the business.
WHEREFORE, Intervener, State Auto Mutual Insurance Company, requests that the
Plaintiffs Complaint be dismissed.
COUNTH
13. Paragraphs 1 through 12 of this Answer are incorporated herein by reference.
14-15. Denied. After reasonable investigation, Intervener, State Auto Mutual Insurance
Company, is without sufficient knowledge or information to admit or deny said averment. Proof
thereof is demanded.
I6-17. Conclusions of law are averred to which no answer is required. If an answer is
required, said averments are denied and proof thereof is demanded.
WHEREFORE, Intervener, State Auto Mutual Insurance Company, requests that the
Plaintiff's Complaint be dismissed.
COUNT III
18. Paragraphs 1 through 17 of this Answer are incorporated herein by reference.
19-20. Denied. After reasonable investigation, Intervener State Auto Mutual Insurance
Company is without sufficient knowledge or information to admit or deny said averment. Proof
thereof is demanded.
21-22. Conclusions are averred to which no answer is required. I fan answer is required, said
averments are denied and proof thereof is demanded.
WHEREFORE, Intervener State Auto Mutual Insurance Company requests that the
Plaintiff's Complaint be dismissed.
NEW MATTER
23. Paragraphs 1 through 22 of this Answer are incorporated herein as new matter.
24. Based on information received, it appears that the sale of the business by Plaintiff to
Defendant was valid.
25. Neither Plaintiff nor Defendant specifically advised Intervener, State Auto Mutual
Insurance Company, that said sale of the business had occurred.
26. Defendant never requested a commercial property insurance policy from Intervener,
State Auto Mutual Insurance Company.
WHEREFORE, Intervener, State Auto Mutual Insurance Company, requests that the
Plaintiffs Complaint be dismissed.
Respectfully submitted,
MARTSON DEARDORFF WILLIAMS & OTTO
By ` C'•
Daniel K. Deardorff, Esquire I/U
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
Attorneys for Intervener
?"y/??Qu State Auto Mutual Insurance Company
Date: I • I ? t JC,170
VERIFICATION
Robert Krebs, who is Senior Claim Examiner of State Auto Mutual Insurance Company and
acknowledges that he has the authority to execute this Verification in behalf of Stale Auto Mutual
Insurance Company certifies that the foregoing Answer is based upon information which has been
gathered by my counsel in the preparation of the lawsuit. The language of this Answer is that of
counsel and not my own. I have read the document and to the extent that the Answer is based upon
information which I have given to my counsel, it is true and correct to the best of my knowledge,
information and belief. To the extent that the content of the Answer is that of counsel, I have relied
upon counsel in making this Verification.
This statement and Verification are made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unswom falsification to authorities, which provides that if I make knowingly false
averments, I may be subject to criminal penalties.
State Auto Mutual Insurance Company
Robert Krebs
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CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Answer With New Matter was served this date by depositing
same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows:
Peter B. Foster, Esquire
PINSKEY & FOSTER
121 South Street
Harrisburg, PA 17101
Mr. Nadeem A. Khan
50 West High Street
Carlisle, PA 17013
MARTSON DEARDORFF WILLIAMS & OTTO
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By
Hcia D. Eckenroad
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: ' I 121A it Z600
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ARAFAT MASWADEH,
Plaintiff
v
NADEEM A. KHAN,
Defendant
AN
NT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7550
CIVIL ACTION - LAW
Defendant, Nadeem A. Khan, by his attorneys, Broujos & Gilroy, P.C., sets forth the
following in response to the Petition to Intervene by State Auto Mutual Insurance
Company:
Admitted.
Admitted.
Admitted.
Admitted.
Admitted.
Admitted.
2
3
4
5
b
i
Admitted.
7
8
Admitted in so far as Petitioner will file the mentioned Answer with New Matter. Denied
that the New Matter as proposed by the Petitioner has any legal merit.
WHEREFORE, Defendant Nadeem A. Khan states no objection to the Court allowing
State Auto Mutual Insurance Company to intervene in the above case.
Respectfully submitted,
Attorney for Defendant
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
(717) 243-4574
Hubert) .Gilroy, Esquire
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SHERIFF'S RETURN - REGULAR
CASE NO: 1999-07550 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MASWADEH ARAFAT
VS
KHAN NADEEM A
HAROLD WEARY , Sheriff or Deputy Sheriff of
Cumberland County, Pensylvania, who being duly sworn according to law,
says, the within NOTICE & COMPLAINT was served upon
KHAN NADEEM A
the
DEFENDANT , at 0009:10 HOURS, on the 23rd day of December , 1999
at 1914 MAPLEWOOD AVE
CARLISLE,, PA 17013 by handing to
CHARV KHAN (WIFE)
a true and attested copy of NOTICE & COMPLAINT together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 18.00
Service 3.10
Affidavit .00
Surcharge 8.00 R. Thomas Kline
.00
29.10 12/23/1999
PETER FOSTER
Sworn and Subscribed to before By: -Z/ /
me this /S day of Deputy Sheriff
?AA« > p v? A.D.
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'Prothonotary '
ARAFAT MASWADEH, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
NADEEM A. KHAN,
Defendant NO. 99-7550 CIVIL TERM
ORDER OF COURT
AND NOW, this I 1 pday of January, 2000, upon consideration of the Petition To
Intervene by State Auto Mutual Insurance Company, a Rule is hereby issued upon
Plaintiff and Defendant to show cause why the relief requested should not be granted.
RULE RETURNABLE within 20 days of service.
BY THE COURT,
Daniel K. Deardorff, Esq.
Ten East High Street
Carlisle, PA 17013
Attorney for Intervenor
State Auto Mutual Ins. Co.
Peter B. Foster, Esq.
120 South Street
Harrisburg, PA 17101
Attorney for Plaintiff
Mr. Nadeem A. Khan
50 West High Street
Carlisle, PA 17013
Defendant, Pro Se
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717-2434574 `966 1690
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ARAFAT MASWADEH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v : NO. 99-7550
NADEEM A. KHAN,
Defendant : CIVIL ACTION - LAW
PRELIMINARY OBJECTIONS
Defendant, Nadeem A. Khan, by his attorneys, Broujos & Gilroy, P.C., sets forth the
following:
The Complaint in the above matter at Count I fails to set forth a cause of action upon
which relief may be granted.
Respectfully submitted,
06
Hubert X. Gilr , Esquire
Attorney for Defendant
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
(717) 243-4574
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02/02/00 %ED 08:24 FAN 717 2.10 0573
CO)IB CO PROTHOSOTARY
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Mist be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPTION OF CASE
(entire caption mast be stated in full)
Arafat Maswadeh
Va.
(Plaintiff)
(Defendant)
zon2
No. 99-7550 Civil Term 1999
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's
demairrer to complaint, ate.):
Petition to Intervene by State Auto Mutual Insurance Company.
2. Identify counsel who will argue case:
(a) for plaintiff: Peter B. Foster, Esquire
Address: PINSKEY & FOSTER
121 South St.
(b) for defendant: Harrisburg, PA 17101
Address:
For: State Auto Mutual Insurance Company - Daniel K. Deardorff, Esquire
Ten East High St.
Carlisle, PA 17013-3093
3. I will notify all parties in writing within two days that this case has
been listed for argument.
4. Argument Ooart Date: March 1, 2000
Nadeem A. Khan
Dated: February 2, 2000 Attorney for Plaintiff
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ARAFAT MASWADEH, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
NADEEM A. KHAN,
Defendant NO. 99-7550 CIVIL TERM
ORDER OF COURT
AND NOW, this.,3rAday of February, 2000, upon consideration of the Petition To
Intervene by State Auto Mutual Insurance Company, and the answers filed by the
Plaintiff and Defendant, a hearing is scheduled for Thursday, April 6, 2000, at 1:30 p.m.,
in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
Daniel K. Deardorff, Esq.
Ten East High Street
Carlisle, PA 17013
Attorney for Intervenor
State Auto Mutual Ins. Co.
Peter B. Foster, Esq.
120 South Street
Harrisburg, PA 17101
Attorney for Plaintiff
Mr. Nadeem A. Khan
50 West High Street
Carlisle, PA 17013
Defendant, Pro Se
Wesley Oleror-.)
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ARAFAT MASWADEH,
Plaintiff
v
NADEEM A. KHAN,
Defendant
TO THE PROTHONOTARY:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7-730 -,Issc
CIVIL ACTION - LAW
PRAECIPE
Please enter the appearance of Hubert X. Gilroy, Esquire, of Broujos & Gilroy, P. C. on
behalf of the Defendant, Nadeem A. Khan, in the above captioned case.
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Hubert X. GiV6y, Esquire
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ARAFAT MASWADEH,
Plaintiff
VS.
NADEEM A. KHAN,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 9 9 - 75 5 o e,-,Q -T-, -
CIVIL ACTION - LAW
NOTICE
COURT ADMINISTRATOR
4th Floor
I Courthouse Square
Carlisle, PA 17013
(717) 240-6200
NOTICIA
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
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WIRE YOU CAN GET LEGAL HELP.
Le ban demandado a usted en la torte. Si usted quiere defendese de estas demandas
expuestas en las paginas siguintes, usted liene viente (20) dias de plazo al partir de la fecha de la
demanda y la notification. Usted debe presentar una apariencia a o en persona o por abogado y
archivar en la torte en forma escrita sus defeensas o sus objeciones a las demandas en contra de
su persona. Sea avisado que si usted no se defiende, la cone tomara medidas y puede entrar una
orden contra usted sin previo aviso o notification y por cualquier queja o alivio que es pedido en
la petition de demanda. Usted puede perder dinero o sus preopedades o otros derechos
importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA L LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
COURT ADMINISTRATOR
4th Floor
I Courthouse Square
Carlisle, PA 17013
(717) 240-6200
ARAFAT MASWADF..H, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
VS. NO. 9g.-vj3v t c' (/?•^
NADEEM A. KHAN,
Defendant CIVIL ACTION - LAW
COMPLAINT
1. Plaintiff is Arafat Maswadeh, an adult individual who resides at 335 Northwest,
Carlisle, Cumberland County, Pennsylvania 17013.
2. Defendant is Nadeem A. Khan, an adult individual who has a business address of
50 West High Street, Carlisle, Cumberland County, Pennsylvania 17013.
3. On or about August 26 1999, Plaintiff owned a delicatessen business located at
50 West High Street, Carlisle, Pennsylvania known as New York Deli which consisted of
inventory, equipment, fixtures and value as an established business enterprise.
COUNT I - RESCISSION
4.
forth herein.
5.
Plaintiff incorporates by reference Paragraphs 1-3 of this Complaint as if fully set
On or about August 26, 1999, Plaintiff purportedly sold said business to
Defendant pursuant to an agreement attached as Exhibit "A".
6. On or about August 26, 1999, Defendant paid Plaintiff $3700 and $11,300 for
the groceries for said business and took over said business with the inventory, equipment and
fixtures located on the premises.
Defendant has operated said business through the present.
8. Plaintiff desires to rescind said agreement and have the parties put back in the
prior status quo which existed prior to the agreement because said document was not a valid,
binding agreement.
9. Said agreement is not a valid, binding agreement for the following reasons:
a) Said agreement is not binding because Paragraph 3 permits
the Defendant to cancel it for any reason or no reason. The
Defendant has not agreed to be bound by the contract.
b) The terms of said agreement are indefinite because
Paragraph 2 does not set forth a specific sales price for the
business.
c) The agreement is invalid because there are no remedies for
seller if buyer defaults.
10. In order to have a binding contract the parties must be unequivocally bound.
11. It is clear from the averments in Paragraph 9 that said agreement is illusory and,
therefore, not binding.
12. The Plaintiff requests that the business, including the inventory, fixtures,
equipment and trade name be immediately returned to him and he, in response, will refund the
$3700 paid to him by Defendant.
WHEREFORE, for all the foregoing reasons, Plaintiff respectfully requests that the
Court order that the contract is canceled, Defendant return the inventory, equipment, fixtures
and trade name to Plaintiff or an equivalent money amount, and that Plaintiff return the $3700
down payment to Defendant.
IN THE ALTERNATIVE
COUNT II - BREACH OF CONTRACT
13. Plaintiff incorporates by reference Paragraphs 1 -12 of this Complaint as if said
averments were fully set forth at length herein.
14. Defendant has not complied with Paragraph 3 of said agreement by failing to pay
the $5,000 required at the time of his taking over of said business.
15. Defendant has not complied with Paragraph 3 of said agreement by failing to
make the required $500 monthly payments provided for in said Paragraph.
16. Defendant is in breach of said agreement by failing to make said payments to
Plaintiff.
17. If the Court finds that said agreement is valid, Plaintiff requests the Court to find
a breach of contract and order specific performance and require Defendant to make said
payments to Plaintiff.
WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests this Court to
find that Defendant breached said agreement and order Defendant to pay Plaintiff $5,000 and
the required $500.00 monthly monthly payments set forth in said agreement.
December 17, 1999
C?''C.. `J •?2t
Peter B. Foster
Attorney for Plaintiff
PINSKEY & FOSTER
121 South street
Harrisburg, PA 17101
(717) 234-9321
VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct. 1
understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904
relative to unsworn falsification to authorities.
December 16, 1999
Arafat Maswadeh
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SALE AGREEMENT
The following sale agreement is being done between Nadeem A.Khan, (buyer) , resident
of 1940 market st,apt 3 , camphill , p.a 17011 and Arafat Maswadeh,(seller) owner
of New york Deli, located at 50 west high st, Carlisle,p.a. 17013. The buyer and seller
are bound by law to honor the contract agreed upon mutually at the following terms.
(.That the seller would fulfill all wishes indicated in the wish list .
2.That the price of the business to be determined by average daily sale of newyork
deli,excluding the sale of lottery, to be determined by the average daily sale of the second
month after the takeover of business from 19 th of august,1999. The sale is to be based
on a maximum of 14 hours a day with the help of one 40 hour a week empoyee and one
20 hour a week employee. If the avg daily sale for 2nd month was below $ 1000.oo a
day,the price for the entire business that is with all its machinery, equipment,goodwill
and other assets but without any liabilities would be$ 40,000.00, if the avg daily sale was
between $ 1000.00 and 1499.00 dollors, the price for the entire business would be $
50,000.00, if the avg sales was $1500.00 or more, the price of the business would be $
60,000.00.
3. The buyer to pay $3000.00 at signup of this contract and $17000.00 to pay at the time
of takeover of business . The balance money would be interest free and paid in
installments of $ 500.00 amonth, the buyer does not have to pay any money if the
business does not make enough money to pay after paying for the basic needs of the
buyer, The seller also guarantees the buyer a buy back guarantee that if for any reason
the business does not make money or any other reason the buyer would return the
business and the seller would return entire money received by him back to seller
immidiately.
4. The seller also provides a non-compete agreement to buyer declaring that he would
neither own or work in a grocery / Deli / restaurant business within 3 miles radius
of 50 west high st, carlisle ,p.a. In case of violation of above, seller to be liable to pay $
100,000.00 fine to the buyer. however if the buyer agrees seller can work for him
anywhere.
5.The buyer will have atleast $7000.00 of saleable grocery and deli items at takeover of
business other wise seller to provide the difference in cash. The prices to be calculated at
the cost price of seller.
6.Further the buyer is buying the business with all equipment, machinery (list attached
herewith), free and clear of any dues or liabilties to anyone.Any
court,burrough,municipal,township or state decisions or dues on newyork deli or the
seller , before the takeover of business date to be sole responsibility of the seller Any
EXHIBIT "A"
dues to any other vendor or any other party before takeover if at all paid by the buyer to
run the business smoothly may be deducted by the buyer from the balance installments.
7.Buyer has the right to sell,transfer,contract or take any partner in the business as long as
seller is being paid his installment or balance in full.
8. If seller has concealed any facts,decisions,notices of the township,city state or any
court pending on newyork deli resulting in an adverse affect on business or business
premisses, this deal can be called off by the buyer and he has a right to get all his money
and compensation of his time and losses due to the loss of his job from the seller.
9. The wish list and list of equipment are a part of this agreement , the signatures of the
buyer and seller would attest the originality of these documents.
I fully understand and agree the contents
Buyer's signatures
I fully understand and agree the contents
Seller's signatures
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ARAFAT MASWADF.H, : IN THE COItR'T OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
%, : NO. 99 - 7550
NADEEM A. KHAN,
Defendant
v
STATE AUTO INSURANCE,
Intervenor
COURT ORDER
AND NOW, this 13 day of August, 2001, upon consideration of the attached petition to
Enforce a Settlement Agreement, a hearing is scheduled in Courtroom No. 1 of the
Cumherland County Courthouse on the .&&:?- day of , 2001
at ::0-P.M.
13V THE COURT,
dL
sley Oler,
cc: Hubert X. Gilroy, Esquire V
Daniel K. Deardorff, Esquire (, imd F- ?J'ol
Peter 13. Foster, Esquire / n
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ARAFAT MASWADEH,
Plaintiff
v
NADEEM A. KHAN,
Defendant
v
STATE AUTO INSURANCE,
Intervenor
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99 - 7550
PETITION TO ENFORCE SETTLEMENT AGREEMENT
Defendant, Nadeem A. Khan, by his attorneys, Broujos & Gilroy, P.C., sets forth the
following:
1
The above captioned case was resolved between the parties by virtue of a settlement
agreement, the pertinent terms of which are as follows:
A. Intervenor State Auto would pay the sum of $60,000.00 (Settlement Fund).
B. The Settlement Fund would be disbursed with $40,000.00 being paid to
Defendant Nadeem A. Khan and the remaining $20,000.00 deposited into an
escrow account with the Cumberland County Prothonotary or such other
depository as directed by the court (Escrow Funds).
_ I
C. The Escrow Funds would be handled such that if Plaintiff Arafat Maswadch
was found innocent of criminal charges pending against him relating to the
fire at the New York Deli or if such criminal charges were dismissed, the
$20,000.00 Escrow Funds would be paid to Maswadch. In the event Mr.
Maswadch was found guilty, the $20,000.00 would he paid to Defendant
Nadeem A. Khan.
D. Plaintiff Maswadch and Defendant Khan would issue a release in favor of
State Auto, and Plaintiff Maswadch and Defendant Khan would issue mutual
releases to each other.
A letter from Plaintiff Maswadch's attorney memorializing these terms of settlement is
attached hereto and marked Exhibit "A".
2
Defendant Khan and Intervenor State Auto are prepared to proceed with the settlement as
outlined above.
3
Despite numerous requests, Plaintiff Maswadch has refused to sign any documentation or
release agreement in order to accomplish this settlement.
4
Defendant Khan is severely prejudiced by Plaintiff Maswadeh's action in this matter in
that Defendant Khan is being denied the benefit of the settlement proceeds he was to have
received.
11
WHEREFORE, Defendant Nadeem A. Khan requests your honorable court to enter an
order directing Plaintiff Arafat Maswadch to sign the necessary documentation to
implement the settlement reached in this case or, in the alternative, for the court to enter
an order authorizing State Auto to proceed with a settlement of the case along the terms as
set forth in Paragraph I without the signature of Plaintiff Arafat Maswadch.
Respectfully submitted,
Hubert X. r roy, Esquire
Attorney r Defendant
Qroujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
(717) 243-4574
Supreme Court ID No. 29943
PINSKEY & FOSTER
ATTORNEYS AT LAW
RALPH B. PINSKEY
PETER B. FOSTER
121 SOU-1.11 STREET
HARRISBURG, PENNSYLVANIA 17101
May 2, 2001
FAXED AND MAILED
243-1850
243-8227
TELEPHONE: (((((7173 234-9321
E-mail: RBPXnskey®aol com
To: Daniel K. Deardorff, Esquire
MARTSON, DEARDORFF, WILLIAMS & OTTO
Ten East High Street
Carlisle, PA 17013
Attorney for State Auto
Hubert X. Gilroy, Esquire
BROUJOS & GILROY, P.C.
Four North Hanover Street
Carlisle, PA 17013
Attorney for Nadeem Khan
Re:
Gentlemen:
Maswadeh Khan v State Auto;
No. 99-7550
My client, Arafat Maswadeh, confirms the settlement agreement reached in this case on
April 30, 2001 subject to the following conditions:
1. There shall be a written settlement agreement and release entered into by the
parties to be signed by all the parties, Mr. Maswadeh, State Auto and Mr. Khan.
2. The total settlement amount is $60,000. Forty thousand dollars of these monies
are to be paid to Mr. Khan. Twenty thousand dollars allocated to Mr. Maswadeh shall be paid
into an escrow account with the Prothonotary of Cumberland County or such other depository as
shall be directed by the Court.
3. It is understood and acknowledged by all parties that Mr. Maswadeh is under
federal indictment for criminal charges at 1:01 CR-146 in the Middle District of Pennsylvania
related to the destruction of the insured contents of the former New York Deli in Carlisle,
Pennsylvania.
Daniel K. Deardorff, Esquire
Hubert X. Gilroy, Esquire
May 2, 2001
Page (2)
4. Should Mr. Maswadeh be found guilty or plead guilty to any of these charges, and
after the exhaustion of all appeals, the $20,000 held in escrow shall be forfeited to Mr. Khan.
5. if Mr. Maswadeh is found innocent or the charges are dismissed, the $20,000
shall be paid to Mr. Maswadeh.
6. . This Agreement shall be effective upon the execution of a Settlement Agreement
and Release signed by all the parties and by approval of the escrow arrangements by the Court.
Very truly yours,
er
1"6' c
Peter B. Foster
PBF:cbl
ARAFAT MASWADEH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
NADEEM A. KHAN,
Defendant
STATE AUTO INSURANCE,
Intervenor
: NO. 99 - 7550
CERTIFICATE OF SERVICE.
AND NOW this 7"' day of August, 2001, 1, Hubert X. Gilroy, Esquire, do hereby certify that a
true and correct copy of the foregoing Petition to Enforce Settlement Agreement was placed
in the United States Mail, First Class, Postage Pre-Paid and addressed as follows:
Peter B. Foster, Esquire
Pinsky & Foster
121 South Street
Harrisburg, PA 17101
26N
DATE
Daniel K. Deardorff, Esquire
Martson, Deardorff, Williams & Otto
10 East High Street
Carlisle, PA 17013
Hubert X. Gilroy, squire
Broujos & Gilr , P.C.
4 North Hano 'r Strcct
Carlisle, PA 013
(717)243-4574
Supreme Court ID No. 29943
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ARAFAT MASWADEH, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
VS. NO.99,:PLM -7SSC)
NADEEM A. KHAN,
Defendant CIVIL. ACTION - LAW
AMENDED COMPLAINT
1. Plaintiff is Arafat Maswadeh, an adult individual who resides at 335 Northwest,
Carlisle, Cumberland County, Pennsylvania 17013.
2. Defendant is Nadeem A. Khan, an adult individual who has a business address of
50 West High Street, Carlisle, Cumberland County, Pennsylvania 17013.
3. On or about August 26 1999, Plaintiff owned a delicatessen business located at 50
West High Street, Carlisle, Pennsylvania known as New York Deli which consisted of inventory,
lease for the aforementioned real estate, equipment, fixtures and value as an established business
enterprise.
COUNT I - RESCISSION
4. Plaintiff incorporates by reference Paragraphs 1-3 of this Complaint as if fully set
forth herein.
On or about August 26, 1999, Plaintiff purportedly sold said business to
Defendant pursuant to an agreement attached as Exhibit "A".
6. On or about August 26, 1999, Defendant paid Plaintiff $3,700 and $11,300 for the
groceries for said business and took over said business with the inventory, equipment and fixtures
located on the premises.
7. Defendant has operated said business through the present.
8. Plaintiff desires to rescind said agreement and have the parties put back in the
prior status quo which existed prior to the agreement because said document was not a valid,
binding agreement.
9. Said agreement is not a valid, binding agreement for the following reasons:
a) Said agreement is not binding because Paragraph 3 permits
the Defendant to cancel it for any reason or no reason. The
Defendant has not agreed to be bound by the contract.
b) Said agreement is not binding on Plaintiff because Plaintiff
cannot adequately read or write the English language and was not
aware of the terns and conditions of the purported contract, which
were not explained to him. Plaintiff is an Arabic immigrant.
Defendant was overreaching when he induced Plaintiff to enter into
said contract when he knew or should have known that Plaintiff
could not adequately read or write the English language.
Defendant drew up the contract.
10. In order to have a binding contract the parties must be unequivocally bound.
11. It is clear from the averments in Paragraph 9 that said agreement is illusory and,
therefore, not binding.
12. The Plaintiff requests that the business, including the inventory, fixtures,
equipment and trade name be immediately returned to him and he, in response, will refund the
$3,700 paid to him by Defendant.
WHEREFORE, for all the foregoing reasons, Plaintiff respectfully requests that the
Court order that the contract is canceled, Defendant return the inventory, equipment, fixtures
and trade name to Plaintiff or an equivalent money amount, and that Plaintiff return the $3,700
down payment to Defendant.
IN THE ALTERNATIVE
COUNT II - BREACH OF CONTRACT
13. Plaintiff incorporates by reference Paragraphs 1 -12 of this Complaint as if said
averments were fully set forth at length herein.
14. Defendant has not complied with Paragraph 3 of said agreement by failing to pay
the $5,000 required at the time of his taking over of said business.
15. Defendant has not complied with Paragraph 3 of said agreement by failing to
make the required $500 monthly payments provided for in said Paragraph.
16. Defendant is in breach of said agreement by failing to make said payments to
Plaintiff.
17. If the Court finds that said agreement is valid, Plaintiff requests the Court to find
a breach of contract and order specific performance and require Defendant to make said
payments to Plaintiff.
WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests this Court to
find that Defendant breached said agreement and order Defendant to pay Plaintiff $5,000 and the
required $500.00 monthly payments set forth in said agreement.
IN THE ALTERNATIVE
COUNTIII - ANTICIPATORY BREACH
18. Plaintiff incorporates by reference Paragraphs 1-17 of this Complaint as if said
averments were fully set forth at length herein.
19. On August 26, 1999, the parties purportedly entered into a contract for the sale
of the business known as the New York Deli located at 50 W. High Street, Carlisle,
Pennsylvania. A copy of said contract is attached as Exhibit "A".
20. On or about November 15, 1999, Defendant delivered a letter to Plaintiff in
which he sought to cancel the agreement and requested a return of the purchase money that he
paid Plaintiff for the business. A copy of said letter is attached as Exhibit "B".
21. Said letter constitutes an anticipatory breach of said agreement by Defendant.
22. By said letter Defendant has repudiated said contract.
WHEREFORE, for the foregoing reasons Plaintiff prays this Court find that Defendant
committed anticipatory breach of the contract and prays that the Court accelerate the remaining
.! 4
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B
payments due under the agreement and award judgment to Plaintiff in the amount of the
remaining payments together with interest and the costs of these proceedings.
February 4, 2000 vaiu?J'
Peter B. Foster
Attorney for Plaintiff
PINSKEY & FOSTER
121 South street
Harrisburg, PA 17101
(717) 234-9321
SALE AGREEMENT
The following sale agreement is being done between Nadeem A.Khan, (buyer) , resident
of 1940 market st,apt 3 , camphill , p.a 17011 and Arafat Maswadeh,(sel ler) owner
of New york Deli, located at 50 west high st, Carlisle,p.a. 17013. The buyer and seller
are bound by law to honor the contract agreed upon mutually at the following terms.
l.That the seller would fulfill all wishes indicated in the wish list.
2.That the price of the business to be determined by average daily sale of newyork
deli,excluding the sale of lottery, to be determined by the average daily sale of the second
month after the takeover of business from 19 th of august, 1999. The sale is to be based
on a maximum of 14 hours a day with the help of one 40 hour a week empoyee and one
20 hour a week employee. If the avg daily sale for 2nd month was below $ 1000.oo a
day,the price for the entire business that is with all its machinery , equipment,goodwill
and other assets but without any liabilities would be$ 40,000.00, if the avg daily sale was
between $1000.00 and 1499.00 dollors, the price for the entire business would be $
50,000.00, if the avg sales was $1500.00 or more, the price of the business would be $
60,000.00.
3. The buyer to pay $3000.00 at signup of this contract and $17000.00 to pay at the time
of takeover of business. The balance money would be interest free and paid in
installments of $ 500.00 amonth , the buyer does not have to pay any money if the
business does not make enough money to pay after paying for the basic needs of the
buyer, The seller also guarantees the buyer a buy back guarantee that if for any reason
the business does not make money or any other reason the buyer would return the
business and the seller would return entire money received by him back to seller
immidiately.
4. The seller also provides a non-compete agreement to buyer declaring that he would
neither own or work in a grocery / Deli / restaurant business within 3 miles radius
of 50 west high st, carlisle,p.a. In case of violation of above, seller to be liable to pay $
100,000.00 fine to the buyer. however if the buyer agrees seller can work for him
anywhere.
5.The buyer will have atleast $7000.00 of saleable grocery and deli items at takeover of
business other wise seller to provide the difference in cash. The prices to be calculated at
the cost price of seller.
6.Further the buyer is buying the business with all equipment, machinery (list attached
herewith), free and clear of any dues or liabilties to anyone.Any
court,burrough,municipal,township or state decisions or dues on newyork deli or the
seller, before the takeover of business date to be sole responsibility of the seller,Any
EXHIBIT "A"
dues to any other vendor or any other party before takeover if at all paid by the buyer to
run the business smoothly may be deducted by the buyer from the balance installments.
7.Buyer has the right to sell,transfer,contract or take any partner in the business as long as
seller is being paid his installment or balance in full.
8. If seller has concealed any facts,decisions,notices of the township,city state or any
court pending on newyork deli resulting in an adverse affect on business or business
premisses, this deal can be called off by the buyer and he has a right to get all his money
and compensation of his time and losses due to the loss of his job from the seller.
9. The wish list and list of equipment are a part of this agreement, the signatures of the
buyer and seller would attest the originality of these documents.
I fully understand and agree the contents
I fully understand and agree the contents
Buyer's signatures Seller's signatures
Mr Arafat Maswadeh
a 5 N West ST
33sgR
DATED: IS NOVEMBER, 1999
PA 17013
Subject : Notice regarding refund of money to nadcecm A Khan,invested by him in
Newyork Deli.
Dear Sir
As per clause no 2 of our agreement you have guaranteed that for any reason or if 1 amnot
satisfied with the performance of the store and it does not makeenough money 1 can get my money back
from you . I hereby ask you to refund the total of thirty thousand dollars that 1 have spentso far towards the
buying and adding additional inventory and equipment for the store .
Besides I and my wife have put in 14 hours a day for over two and a half month now.
THIS NOTICE GIVES YOU 15 DAYS TIME TO REFUND MY MONEY,ACCORDING TO
THE TERMS AND AGREEMENT OF OUR CONTRACT. IF THE MONEY IS NOT PAID WITHIN
THIS TIME THAN YOU WOULD NOT 14AVE ANY CLAIM FOR ANY MONEY DUE TO YOU AS
PER THE CONTRACT FROM THE BUYER OF NEWYORK DELI THAT IS NADEEM A KHAN.
NADEEM A KHAN WOULD HAVE THE RIGHT TO SELL /CONTRACT TAKE A PARTNER OR
HE MAY GO FOR ANY OTHER OPTION OR ALTER NATIVE WHICH HE MAY FEEL IS RIGHT
TO GET HIS INVESTMENT OUT OR TO RUN THE BUSINESS.
THE 15 DAY TIMEFRAME OF THIS NOTICE IS EXTREMELY RAPORTANT ESSENCE TO
NADEEM A KHAN AS BASEDON YOUR DECISION IF YOU CHOOSE NOT TO PAY,HE WOULD
HAVE TO QUIT HIS JOB HIS MAIN SOURCE OF INCOME IN ORDER TO PUT IN MORE TIME
AND WOULD ALSO NEED TO ARRANGE FOR MORE MONEY TO RENOVATE THE STORE AND
ADVERTISEMENT E.T.C. THUS THIS IS A FINAL NOTICE. /
Sincerely
NADEEM A KHAN
NEW OWNER OF NEW YORK DELI
50 WEST HIGH ST
CARLISLE,
PA 17013
Eq?-- 50?
"B"
CERTIFICATE OF SERVICE
I hereby certify that on this date, February 4, 2000, I served a copy of the foregoing
Amended Complaint on the Defendant by mailing said copy by United States Mail at Harrisburg,
PA to the Attorney for the Defendant at the following address:
Hubert X. Gilroy, Esquire
BROUJOS & GILROY, P.C.
4 North Hanover Street
Carlisle, PA 17013
February 4, 2000
Peter B. Foster
Attorney for Plaintiff
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VERIFICATION
I verify that the statements made in the foregoing Amended Complaint are true and
correct. I understand that false statements herein are made subject to the penalties of 18 Pa.
C.S. § 4904 relative to unswom falsification to authorities.
February 3, 200014- i?iyy (li,(
Arafat Maswadeh
1'w ATMASWADEH,
Plaintiff
vs.
NADEEM A. KHAN,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-75g IS,5- 6
CIVIL ACTION - LAW
ARAFAT MASWADEH'S ANSWER TO
PETITION TO INTERVENE BY STATE
AUTO MUTUAL INSURANCE COMPANY
AND NOW, this 24th day of January, 2000, comes Plaintiff Arafat Maswadeh and
responds to State Auto Mutual Insurance Company's Petition to Intervene and, in support
thereof, avers as follows:
I • Admitted.
2. Admitted.
3. Admitted in part and denied in part. Admitted that Petitioner is not a party to this
action. Admitted that Petitioner has a commercial general liability policy with Plaintiff which
provides coverage for the loss of contents and also liability coverage for Plaintiff's business at 50
West High Street, Carlisle, Pennsylvania. Denied that Petitioner has an interest in the result of the
said action. On the contrary, Petitioner has no interest in the result of said action because it is a
stranger to the alleged contract between Plaintiff and Defendant and, therefore, has no standing to
intervene.
4. Admitted in part and denied in part. Admitted that on or about December 18,
1999, a fire occurred on the premises of the New York Deli at 50 West HIgh Street, Carlisle,
Cumberland County, Pennsylvania. Admitted that as a result of said fire, various provisions of the
insurance policy between Plaintiff and Petitioner may come into play in the event Plaintiff prevails
on his Complaint and is able to rescind the sale of his business to Defendant. It is denied that
Petitioner may be adversely affected by the results of this legal action. The results of this contract
action do not in and of itself adversely affect Petitioner. It is the terms of the insurance contract
and the facts of the fire which determine petitioner's liability. It is further denied that Petitioner
has a legally enforceable interest that may be affected by said action. On the contrary, Petitioner
is not a party to the alleged contract between the parties and, therefore, has no standing to assert
a claimed interest in the proceedings. It is further denied that Petitioner is concerned whether its
interests will be adequately protected by the parties. Plaintiff has no knowledge as to the truth or
falsity of said averment and strict proof thereof is demanded at trial.
Denied. It is denied that the granting of Petitioner's Petition to Intervene will not
cause undue delay to the proceedings and will further judicial economy. On the contrary, there
will be a substantial delay to the proceedings caused by Petitioner's Petition. An Answer by each
party will be needed and Briefs required and argument at Argument Court. There will be no
judicial economy. On the contrary, the proceedings will be unduly delayed by Petitioner's
frivolous Petition.
6. Denied. It is denied that Petitioner should be permitted to intervene in
subordination of the above-captioned action. On the contrary, subordination is a legal term
applicable to a tort action and not a contract action as in this case. Petitioner's argument is
fallacious. If Petitioner is attempting to subordinate itself to Plaintiff, it is undermining Plaintiffs
rights by its position in its Petition to Intervene. Consequently, Petitioner is not asserting a
legitimate subordination interest.
Denied. It is denied that if Petitioner is permitted to intervene, it will demand that
the Complaint filed by Plaintiff to Defendant on or about August 26, 1999 be dismissed and the
sale of said business by Plaintiff to Defendant be permitted to stand. On the contrary, Plaintiff has
no knowledge as to what Petitioner will do if it is permitted to intervene and strict proof thereof is
demanded at trial.
8. Denied. It is denied that if Petitioner is permitted to intervene, it will file an
Answer with New Matter, a copy of which is attached to Petitioner's Petition and marked Exhibit
"B". On the contrary, Plaintiff has no knowledge as to what Petitioner will do if it is permitted to
intervene and strict proof thereof is demanded at trial.
WHEREFORE, Plaintiff Arafat Maswadeh, requests that Petitioner not be allowed
to intervene in the instant action.
January 24, 2000 ? v ' V-3?&c
Peter B. Foster
Attorney for Plaintiff
PINSKEY & FOSTER
121 South street
Harrisburg, PA 17101
(717) 234-9321
VERIF_ ICS
I verify that the statements made in the foregoing Answer to Petition to intervene by State
Auto Mutual Insurance Company are true and correct. I understand that false statements herein
made are subject to the penalties of 18 Pa. C.S. § 4904 relative to unsworn falsification to
authorities.
January 24, 2000
Arafat Maswadeh
CERTIFICATE OF SERVICE
I hereby certify that on this date, January 24, 2000, 1 served a copy of the foregoing
Answer to Petition to intervene by State Auto Mutual Insurance Company on the Petitioner by
mailing said copy by United States Mail at Harrisburg, PA to the Attorney for Petitioner at the
following address:
Daniel K. Deardorff, Esquire
MARTSON, DEARDORFF, WELLIAMS & OTTO
Ten East High Street
Carlisle, PA 17013-3093
C I Vob?c
January 24, 2000
Peter B. Foster
Attorney for Plaintiff
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ARAFAT MASWADF.H, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v : NO. 99 - 7550
NADEEM A. KHAN,
Defendant
v
STATE AUTO INSURANCE,
Intervenor
_ COURT ORDFR
AND NOW this 10" day of September, 2001, upon representation that the law firm of
Broujos & Gilroy, P.C. will incur expenses of the Cumberland County Sheriff for
transporting Arafat Maswadeh to the hearing scheduled in the above case on September
11, 2001 at 3:00 p.m., it is hereby ordered that the Cumberland County Sheriff shall
transport Arafat Maswadch from the Cumberland County Prison to the mentioned
hearing, with appropriate personnel of the Cumberland County Sheriffs Office staying
with Mr. Maswadch during the hearing and returning Mr. Maswadch to the Cumberland
County Prison at the conclusion of the hearing. Costs incurred by the Cumberland County
Sheriff in connection with this transportation shall be billed to the law firm of Broujos &
Gilroy, P.C.
BY THE COU T
By:
cc: Hubert X. Gilroy, Esquire - q, 4en << i ?y
Peter B. Foster, Esquire M?o,led
Daniel K. Deardorff, Esquire rva le d
Sergeant Barry Horn, Sheriffs Office
GIvtn { 0 512 r' ff by 6d,-
uri
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BROUJOS & GILROY, P.C.
ATTORNEYS AT LAW
JOHN H. nROujos 4 NORTH HANOVER STREET
HUBERr X. GILROY
CARLISLE, PENNSYLVANIA 17013
September 10, 2001
The Honorable J. Wesley Oler, Jr.
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Re: Maswadeh v Khan v State Auto
Dear Judge Oler:
TELEPHONE: (717) 243-4574
FACSIMILE: (717) 243-8227
INTERNET: brgi 1 roypcoa ol.com
NON-TOLL FOR HARRISBURG AREA
717-766.1690
We have a hearing before you in the above case which is scheduled for Tuesday of this
week at 3:00 p.m.
Mr. Maswadeh is currently incarcerated at the Cumberland County Prison on federal
charges. I spoke with his counsel, Peter Foster, with respect to securing Mr. Maswadeh's
attendance at the hearing. Mr. Foster is not in a position to incur expenses for transporting
Mr. Maswadeh to the hearing, but he indicated to me that he did not have any objection if I
was able to make arrangements for this transportation.
I spoke with Sergeant Barry Horn at the Sheriff's Office, and Sergeant Horn indicated to
me that he did not anticipate expenses for the transportation of Mr. Maswadeh to exceed
5200
.00. Our firm is willing to incur those expenses, and enclosed is a proposed order to
have the Sheriff transport Mr. Maswadeh to the hearing.
Sincerely yours,
Hubert X. Gilroy
dca
Enclosure
cc: Sergeant Barry Horn, Sheriffs Office
Daniel K. Deardorff, Esquire
Peter B. Foster, Esquire
Nadeem A. Khan
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L.
V
ARAFAT MASWADEH,
Plaintiff
V.
NADEEM A. K HAN,
Defendant
V.
STATE AUTO INSURANCE,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-7550 CIVIL TERM
ORDER OF COURT
AND NOW, this 11th day of September, 2001, upon
consideration of the Petition To Enforce Settlement Agreement
filed by the Defendant, Nadeem A. Khan, and following a hearing at
which the Plaintiff, Arafat Maswadeh, appeared with his counsel,
Peter B. Foster, Esquire, at which the Defendant, Nadeem A. Khan,
appeared with his counsel, Hubert X. Gilroy, Esquire, and at which
Intervenor State Auto Insurance appeared through its counsel,
Daniel K. Deardorff, Esquire, the record is declared closed and
the matter is taken under advisement.
Counsel are requested within five days of today's
date to submit to the court a proposed order or orders which they
wish the Court to execute based on the evidence presented at the
hearing.
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By the Court,
Peter B. Foster, Esquire
121 South Street
Harrisburg, PA 17101
For the Plaintiff
Hubert X. Gilroy, Esquire
4 North Hanover Street
Carlisle, PA 17013
For the Defendant
Daniel K. Deardorff, Esquire
10 East High Street
Carlisle, PA 17013
pcb
SHERIFF'S RETURN - REGULAR
CASE NO: 1999-07550 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MASWADEH ARAFAT
VS
KHAN NADEEM A
GERALD WORTHINGTON Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COURT ORDER was served upon
MASWADEH ARAFAT the
PLAINTIFF , at 0800:00 HOURS, on the 11th day of Member, 2001
at CUMBERLAND COUNTY PRISON 1101 CLAREMONT ROAD
CARLISLE, PA 17013 by handing to
ARAFAT MASWADEH
a true and attested copy of COURT ORDER
together with
and at the same time directing His attention to the contents thereof.
Additional Comments
OSE OF A H.
CO. PRISON
Sheriff's Costs:
CUMBERLAND
So Ansaver ?,L•?
Docketing 9.00
Service 1.30
Removing fr Inst. 20.00
Committing to Inst 20.00
.00
50.30
Sworn and Subscribed to before
me this a7 - day of
„2o l A.D.
R. Thomas Kline
09/18/2001
BROUJOS & GILROY
By. ? L
Deputy Sh ff
rbthonotary
ia. .
ARAFAT MASWADEH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PEN NSYLVANIA
NADF,F,M A. KHAN, : NO. 99 - 7550
Defendant
v _
STATE AUTO INSURANCE,
Intervenor - =
COURT ORDER
AND NOW, this 1,41 day of September, 2001, after a hearing in this case on the
Petition of Defendant Nadeem A. Khan to enforce a settlement agreement entered into
between the parties, and after the court conducting a hearing during which Defendant
Nadeem A. Khan offered evidence with respect to the settlement agreement, and at which
Intervenor State Auto Insurance stated its support to the Petition to Enforce the Settlement
Agreement, and at which Plaintiff Arafat Maswadch appeared with his counsel and offered
no testimony in response to the evidence presented by Defendant Nadeem A. Khan, this
court rinds as a fact that the parties did enter into a settlement of this case and, pursuant
to that settlement, this Court orders and directs as follows:
1. The above captioned case is settled. The Prothonotary is hereby authorized
and directed to enter on the docket in this case that the matter is settled and
discontinued.
A
2. The General Release and the Addendum to General Release Agreement,
copies of which are attached hereto as Exhibit "A", shall form the basis for
the settlement of this case between the parties, and the General Release and
Addendum to General Release Agreement shall be filed of record with the
Cumberland County Prothonotary with this Order and shall constitute a
resolution of this case, with the terms of the General Release and Addendum
to the General Release Agreement having the authority of a document that
was signed and executed by all parties to this action.
3. Without any further authorization from the parties or without the
requirement of a further court order, Intervenor State Auto Mutual
Insurance Company shall make the following payments:
A. Forty Thousand Dollars ($40,000.00) in the form of a check made
payable to Defendant Nadeem A. Khan and his attorney, Hubert X.
Gilroy, Esquire. Said check shall be delivered to Attorney Gilroy.
B. Twenty Thousand Dollars ($20,000.00) in the form of a check made
payable to the Cumberland County Prothonotary which counsel for
State Auto shall deliver to the Cumberland County Prothonotary.
The Cumberland County Prothonotary shall hold said funds in
escrow until authorized to release said funds by further order of this
Court pursuant to the terms of the General Release and Addendum to
General Release Agreement. It is understood and acknowledged by
I Js
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all parties that Mr. Maswadeh is under federal indictment for
criminal charges at 1:01-CR-146 in the Middle District of
Pennsylvania related to the destruction of the insured contents of the
former New York Deli in Carlisle, Pennsylvania. Should Mr.
Maswadeh be found guilty or plead guilty to any of these charges, the
520,0110.00 held in escrow shall he forfeited to Mr. Khan. If Mr.
Maswadeh is found innocent or the charges are dismissed, the
$20,000.00 held in escrow shall be paid to Mr. Maswadeh.
4. This Order shall constitute a general release between all parties to this
action, including a general release to all parties named in the General
Release and Addendum to General Release Agreement, and shall constitute a
conclusion of the litigation between the parties subject, however, to the
future disbursement of the Twenty Thousand Dollars as set forth above.
cc: Hubert X. Gilroy, Esquire
Daniel K. Deardorff, Esquire
Peter B. Foster, Esquire
RV THP rnilPT
P11 I L I S 115MLINSTA111.1W 4ul IoIgib
t C.FNFIZAI.11FLEASE
FOR AND IN CONSIDERATION OF the payment to ARAPAT MASWADEIi 17A NEWYORK DELI
& GROCERY AND NADEEM KAI-IN -r/A NEW YORK DELI & GROCERY of the suns of SIXTY
TIIOUSAND DOLLARS and XX/100, (560,000.00), and other good and valuable consideration, the receipt
whereof is hereby acknowledged, we, being of lawful age, have released and discharged, and by these presents
do for ourselves, our heirs, executors, administrators, successors and assigns, release, acquit and forever discharge
STATE AUTO MUTUAL INSURANCE COMPANY,STATEAUTOPROPERTY ANDCASUALTY, STATE
AUTO INSURANCE COMPANIES (1lereafter, referred to collectively as "State Auto"), GENE MILLER,
MILLER INSURANCE ASSOCIATES, INC., and any and all other persons, fines, insurers, and corporations,
of and from any and all past, present and future actions, causes of action, claims, demands, damages, costs, loss
of services, insurance benefits, expenses, compensation, third party actions, suits at law or in equity, including
claims or suits for contribution and/or indemnity, of whatever nature, and all consequential damage on account
of, or in any way growing out of any and all known and unknown personal injuries and/or property damage
resulting or to result from an alleged accident that occurred on or about the 18TH day of DECEMBER, 1999.
ARAFAT MASWADEH AND NADEEM KAI IN both individually and T/A NEW YORK DELI &
GROCERY hereby relinquish their rights to STATE AUTO for subrogation against any persons who may have
caused this loss.
We do hereby declare and represent that the damages sustained may be progressive, and in making this
release and agreement it is understood and agreed that we rely wholly upon our own judgment, belief and
knowledge of the nature, extent and duration of said damages.
We understand that this settlement is the compromise of a doubtful and disputed claim, and that the
payment is not to be construed as an admission of liability or coverage on the part of the persons, firms and/or
corporations hereby released by whom liability is expressly denied.
It is understood and agreed that this Release is executed in connection with the settlement of the claims
of the undersigned as set forth in a Civil Action entered to No. 99-7550 in the Court of Common Pleas of
Cumberland County, Pennsylvania, which action is to be marked as discontinued, settled and withdrawn.
It is further understood, and agreed, that this is the complete release agreement, and that there are no
written or oral understandings, or agreements, directly or indirectly connected with this release and settlement that
are not incorporated herein. This agreement shall be binding upon and inure to the successors, assigns, heirs,
executors, administrators, and legal representatives of the respective parties hereto.
We fully understand that any person knowingly and with intent to defraud any insurance company or other
person files a statement of claim containing any materially false information or conceals, for the purpose of
misleading, information concerning any fact material thereto, conmmils a fraudulent insurance act, which is a crime
and subjects such person to criminal and civil penalties.
The existence of this settlement and the amount paid pursuant hereto shall be kept in strictest confidence
and shall not be disclosed to any other person. Neither we nor our attorneys or other representatives will in any
way publicize or cause to be publicized, in any websites, internet provider services, news or communications
media, including but not limited to newspapers, magazines,joumals, radio or television, the facts of or the tends
and conditions of this settlement. All parties to this agreement expressly agree to decline comment on any aspect
EXHIBIT
9
of this settlement to any member of the news media. This paragraph is intended to become part of the
consideration for settlement of this case.
TIME UNDERSIGNED I IEREBY DECLARES that the temus of this settlement have been completely
read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise
adjustment and settlement of any and all claims on account of the injuries and damages above-mentioned, and for
the express purpose of precluding forever any legal actions arising out of the aforesaid claims, and that my
attorney, Huber X. Gilroy, Esquire, attorney for Nadecm Kahn and Peter B. Foster, Esquire, attorney for Arafat
Maswadch has explained to my satisfaction and understanding the full legal effect of this release to nae and 1 am
satisfied that this is fair, just and in my own best interests.
IN WITNESS WHEREOF, we have hereunto setourhandsandsealsthis dayof
, intending to be legally bound thereby.
WITNESS:
(SEAL)
Arafat Maswadch
(SEAL)
Nadecm Kahn
COMMONWEALTH OF PENNSYLVANIA )
:SS.
COUNTY OP CUMBERLAND )
On this day of before me personally appeared Arafat Maswadch,
known tome to be the person whose name is subscribed to the within Release and acknowledged that he executed
the same for the purposes therein contained.
IN WITNESS WHEREOF, 1 have hereunto set my [laid and official seal.
Notary Public (SEAL)
COMMONWEALTI I OF PENNSYLVANIA )
:SS.
COUNTY OF CUMBERLAND )
On this dayof _, be forentepersonallyappearedNadeemKahn,known
to me to be the person whose name is subscribed to the within Release and acknowledged that he executed the
same for the purposes therein contained.
IN WITNESS WFIEREOF, 1 have hereunto set my hand and official seal.
Notary Public (SEAL)
Addendum to General Release Agreement
The parties to the General Release Agreement between Arafat Maswadeh (Maswadeh)
and Nadeem Khan (Khan) and State Auto Mutual Insurance Company (State Auto) dated
the day of June, 2001 hereby agrees that the release and settlement is subject
to the following conditions:
1. Twenty Thousand ($20,000.00) Dollars allocated to Mr. Maswadeh under
the distribution of the $60,000.00 settlement proceed shall be paid into an
escrow account with the Prothonotary of Cumberland County or such other
depository as shall be directed by the court. This $20,000.00 check shall
be made payable by State Auto to the escrow agent as designated by legal
counsel for Maswadeh and Khan.
2. Should Maswadeh be convicted of any of the criminal charges in federal
indictment at 1:01 CR 146, and, after the exhaustion of all appeals, the
said $20,000.00 held in escrow as set forth in Paragraph 1 above shall be
paid to Nadeem A. Khan and his attorney, Hubert X. Gilroy, Esquire.
3. If Maswadeh is found innocent or the charges as referenced in Paragraph 2
above are dismissed, the $20,000.00 shall be paid by the escrow agent to
Mr. Maswadeh and his counsel, Peter B. Foster, Esquire.
4. The remaining $40,000.00 from the settlement shall be made payable to
Nadeem Khan and his counsel, Hubert X. Gilroy, Esquire.
5. This settlement is conditioned upon the Court of Common Pleas of
Cumberland County approving this settlement and these escrow
arrangements.
Witness
Peter B. Foster, Esquire
Attorney for Arafat Maswadeh
Hubert X. Gilroy, Esquire
Attorney for Nadeem A. Khan
Arafat Maswadeh
Nadeem A. Khan
State Auto Mutual Insur
By:
Daniel K. Deardo
Attorney for Stat
RECEIPT FOR PAYMENT
Cumberland CountPaProtho otary's Office
rlisle, 17013
MASWADEH ARAFAT (vS) KHAN NADEEM A
Case Number 1999-07550
Received of BBONDSPER RKSRT ORDER DATED
09--01 Total Check... + .00
Total Cash.... + 20,000.00
Change........ - .00
Receipt total. = 20,000.00
Receipt Date 10/23/2001
Receipt Time 9:00:06
Receipt No. 117990
----- Distribution Of Payment ----------------------------
-------------------
Transaction Description Payment Amount
BOND 20,000.00 PROTHONOTARY ESCROW
20,000.00
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ARAFAT MASWADEH,
Plaintiff
V.
NADEEM A. KHAN,
Defendant
V.
STATE AUTO
INSURANCE,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-7550 CIVIL TERM
ORDER OF COURT
AND NOW, this 6"' day of November, 2003, upon consideration of Defendant's
Motion, a Rule is hereby issued upon Plaintiff and Intervenor to show cause why the
relief requested should not be granted.
RULE RETURNABLE within 20 from the date of the order.
Peter B. Foster, Esq.
Attorney for Plaintiff
Arafat Maswadeh
#10652-067
McKean FCI
P.O. Box 5000
Bradford, PA 16701
Plaintiff
//• 07.0-3
BY THE COURT,
In ar ^
UiC:!
r r ? :;I41 i?
Hubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Defendant
Daniel K. Deardorff, Esq.
Attorney for Intervenor
:rc
ARAFAT MASWADEH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v : NO. 99 - 75511
NADEEM A. KHAN,
Defendant
V
STATE AUTO INSURANCE,
Intervenor
COURT ORDER
AND NOW, this day of , 2003, upon
consideration of the attached Petition, and it appearing that Plaintiff Arafat Maswadeh
was found guilty of all counts tiled against him in a federal indictment in the Middle
District of Pennsylvania at Docket No. 1:02-DR-116, and it further appearing that the
United States Court of Appeals for the Third Circuit has affirmed said conviction, and it
further appearing that Mr. Maswadeh has taken no further appeal from the affirmance of
his conviction and the time limit for filing any appeal has elapsed, it is directed that the
Cumberland County Prothonotary shall pay to Nadeem A. Khan the sum of 5211,000. Said
payment shall be made in the form of a check made payable as follows: "Nadeem A. Khan
and his attorney, Hubert X. Gilroy, Esquire," and said check shall be delivered to Attorney
Gilroy.
BY THE COURT,
By:
cc: Hubert X. Gilroy, Esquire
Daniel K. Deardorff, Esquire
Peter B. Foster, Esquire
Arafat Maswadeh
J.
ARAFAT MASWADEII, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v : NO. 99 - 7550
NADEEM A. KHAN,
Defendant
v
STATE AUTO INSURANCE,
Intervenor
MOTION
Petitioner, Nadeem A. Khan, by his attorneys, Broujos & Gilroy, P.C., sets forth the
following:
1
By Order of Court dated September 15, 2001, the sum of 520,000 was deposited with the
Cumberland County Prothonotary pursuant to a settlement agreement reached in the
above case. A copy of said order is attached hereto and marked Exhibit "A".
2
Paragraph 3B of the mentioned September 15, 2001 Order of Court provides in pertinent
part as follows:
"It is understood and acknowledged by all parties that Mr. Maswadeh
is under federal indictment for criminal charges at 1:01-CR-146 in the
Middle District of Pennsylvania relating to the destruction of the insured
contents of the former New York Deli in Carlisle, Pennsylvania. Should Mr.
Maswadch be found guilty or plead guilty to any of these charges, the
S20,000 held in escrow shall be forwarded to Mr. Khan. If Mr. Maswadeh is
found innocent or the charges are dismissed, the 520,0011 held in escrow shall
be paid to Mr. Maswadeh."
3
On November 26, 2001, after a four day jury trial, Plaintiff Arafat Maswadch was
convicted of all charges riled against him.
4
Mr. Maswadch filed an appeal of that conviction to the United States Court of Appeals for
the Third Circuit which was docketed at No. 02-2663.
5
The Third Circuit Court of Appeals issued a decision on March 25, 2003 affirming Mr.
Maswadch's conviction and sentence. A copy of said decision is attached hereto and
marked Exhibit "B".
6
No further appeal has been taken to the decision of the Third Circuit Court of Appeal, and
the time limit to file such an appeal has expired. A copy of the docket entries for the Third
Circuit Court of Appeal relating to this case is attached hereto and marked Exhibit "C".
WHEREFORE, Petitioner Nadcem A. Khan requests your Honorable Court to direct the
Cumberland County Prothonotary to pay to Mr. Khan's attorney the sum of S20,000
pursuant to Paragraph 3B of this court's September 15, 2001 Order of Court.
Respectfully submitted,
It
Hubert X. Gilroy, Esquir?
Attorney for Nadcem A. ai
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
(717) 243-4574
Supreme Court ID No. 29943
ARAFAT MASWADEll,
Plaintiff
v
NADEEM A. KHAN,
Defendant
v
IN T11E COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99 - 7550
STATE AUTO INSURANCE,
Intervenor
COURT ORDER
AND NOW, this /3 day of September, 2001, after a hearing in this case on the
Petition of Defendant Nadeem A. Khan to enforce a settlement agreement entered into
between the parties, and after the court conducting a hearing during which Defendant
Nadeem A. Khan offered evidence with respect to the settlement agreement, and at jvhich
Intervenor State Auto Insurance stated its support to the Petition to Enforce the Settlement
Agreement, and at which Plaintiff Arafat Masivadeh appeared with his counsel and offered
no testimony in response to the evidence presented by Defendant Nadeem A. Khan, this
court finds as a fact that the parties did enter into a settlement of this case and, pursuant
to that settlement, this Court orders and directs as follows:
The above captioned case is settled. The Prothonotary is hereby authorized
and directed to enter on the docket in this case that the matter is settled and
discontinued.
2. The General Release and the Addendum to General Release Agreement,
copies of which are attached hereto as Exhibit "A", shall form the basis for
the settlement of this case between the parties, and the General Release and
Addendum to General Release Agreement shall be riled of record with the
Cumberland County Prothonotary with this Order and shall constitute a
resolution of (his case, with the terms of the General Release and Addendum
to the General Release Agreement having the authority of a document that
was signed and executed by all parties to this action.
3. Without an), further authorization from the parties or without the
requirement of a further court order, Intervenor State Auto Mutual
Insurance Company shall make the following payments:
A. Forty Thousand Dollars (S40,000.00) in the form of a check made
payable to Defendant Nadeem A. Khan and his attorney, I-lubert X.
Gilroy, Esquire. Said check shall be delivered to Attorney Gilroy.
13. Twenty Thousand Dollars (S20,000.00) in the form of a check made
payable to the Cumberland County Prothonotary which counsel for
Stale Auto shall deliver to the Cumberland County Prothonotary.
The Cumberland County Prothonotary shall hold said funds in
escrow until authorized to release said funds by further order of this
Court pursuant to the terms of the General Release and Addendum to
General Release Agreement. It is understood and acknowledged by
all parties that Mr. Maswadch is under federal indictment for
criminal charges at 1:01-CR-146 in the Middle District of
Pennsylvania related to the destruction of the insured contents of the
former New York Deli in Carlisle, Pennsylvania. Should Mr.
Maswadch be found guilty or plead guilty to any of these charges, the
S20,000.00 held in escrow shall be forfeited to Mr. Khan. If Mr.
Maswadch is found innocent or the charges are dismissed, the
$20,000.00 held in escrow shall he paid to Mr. Maswadch.
4. This Order shall constitute a general release between all parties to this
action, including a general release to all parties named in the General
Release and Addendum to General Release Agreement, and shall constitute a
conclusion of the litigation between the parties subject, however, to the
future disbursement of the Twenty Thousand Dollars as set forth above.
BY THE COURT,
s ?L (2
J. Wesley Ole , .Ir., J.
cc: Hubert X. Gilroy, Esquire
Daniel K. Deardorff, Esquire
Peter B. Foster, Esquire
In TPsJ. irnany wi or-mf, I i,er; ..rf ,ri' >la
B!. 111P 5c]l of said C'Jr ' at -disle, i ?.
This / 7 _day of,: ?r?
Pra!ir„naar?
Mr
11111.1 S I I A tAFII WT Atk1A 14 rtl 141v11p
CRNBRAL RELEASF.
PORAND IN CONSIDERATION Op the payment to ARAFAT MASWADEI1 17A NEWYORK DELI
&: GROCERY AND NADEEM KAHN '17A NEW YORK DELI & GROCERY of the sum of SIX'T'Y
THOUSAND DOLLARS and XX/100, ($60,000.00), and other good and valuable consideration, the receipt
whereof is hereby acknowledged, we, being of lawful age, have released and discharged, and by these presents
do for ourselves, our heirs, executors, administrators, successors and assigns, release, acquit and forever discharge
STATE AUTO MUTUAL INS U RANCE COM PANY, STATE AU-1-0 PROPERTY AND CASUALTY, STATE
AUTO INSURANCE COMPANIES (Ilcreaficr, referred to collectively as "State Auto'), GENE MILLER,
MILLER INSURANCE ASSOCIATES, INC., and any and all other persons, fines, insurers, and corporations,
of and from any and all past, present and future actions, causes of action, claims, demands, damages, costs, loss
of services, insurance benefits, expenses, compensation, third party actions, suits at law or in equity, including
claims or suits for contribution and/or indemnity, of whatever nature, and all consequential damage on account
of, or in any way growing out of any and all known and unknown personal injuries and/or property damage
resulting or to result from an alleged accident that occurred on or about the 18TH day of DECEMBER, 1999.
ARAPAT MASWADEII AND NADEEM KAHN both individually and T/A NEW YORK DELI S
GROCERY hereby relinquish their rights to STATE AUTO for subrogation against any persons who may have
caused this loss.
We do hereby declare and represent that the damages sustained may be progressive, and in making this
release and agreement it is understood and agreed that we rely wholly upon our own judgment, belief and
knowledge of the nature, extent and duration of said damages.
We understand that this settlement is the compromise of a doubtful and disputed claim, and that die
payment is not to be construed as an admission of liability or coverage on the part of the persons, fimu and/or
corporations hereby released by whom liability is expressly denied.
It is understood and agreed that this Release is executed in connection with the settlement of the claims
of the undersigned as set forth in a Civil Action entered to No. 99-7550 in the Court of Common Pleas of
Cumberland County, Pennsylvania, which action is to be marked as discontinued, settled and withdrawn.
It is further understood, and agreed, that this is the complete release agreement, and that there are no
written moral understandings. or agreements, directly or indirectly connected with this release and settlement that
are not incorporated herein. This agreement shall be binding upon and inure to the successors, assigns, heirs,
executors, administrators, and legal representatives of the respective parties hereto.
We fully understand that any person knowingly and with intent to defraud any insurance company or other
person files a statement of claim containing any materially false information or conceals, for the purpose of
misleading, information concerning any fact material thereto, commits a fraudulent insurance act, which is a crime
and subjects such person to criminal and civil penalties.
The existence of this settlement and the amount paid pursuant hereto shall be kept in strictest confidence
and shall not be disclosed to any other person. Neither we nor our attorneys or other representatives will in any
way publicize or cause to be publicized, in any websites, Internet provider services, news or communications
umedia. including but not limited nl nee spaper;. magazines, journals, radio m television, the Inns of or the terms
and cnuduumis ol'this settl"nient. All parts"'to du..i ?rccnunt expressly a;;lec to decline conmuent un any aspect
EXHIBIT
a «Atn
°a
of this settlement io any member of the news media. This paragraph is intended to become part of the
consideration for settlement of this case.
THE UNDERSIGNED HEREBY DECLARES that the temps of this settlement have been completely
read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise
adjustment and settlement of any and all claims on account of the injuries and damages above-mentioned, and for
the express purpose of precluding forever any legal actions arising out of (lie aforesaid claims, and that my
attorney, Hubert X. Gilroy, Esquire, attorney for Nadecm Kahn and Peter B. Foster, Esquire, attorney for Arafat
Maswadch has explained to my satisfaction and understanding the full legal effect of this release to me and 1 am
satisfied that this is fair, just and in my own best interests.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of
intending to be legally bound thereby.
WITNESS:
Arafat Maswadch (SEAL)
Nadecm Kahn (SEAL)
COMMONWEALTH OF PENNSYLVANIA )
:SS.
COUNTY OF CUMBERLAND )
On this day of before nne personally appeared Arafat Maswadch,
known to me to be the person whose name is subscribed to the within Release and acknowledged that he executed
the same for the purposes therein contained.
IN WITNESS WHEREOF, l have hereunto set my hand and official seal.
Notary public (SEAL)
COMNIONWEALTII OF PENNSYLVANIA )
COUNTY OF CUMBERLAND :SS.
On this dayoC before me personallyappcaredNadeemKahn, known
to me to be the person whose name is subscribed to the within Release and acknowledged that he executed the
same for the purposes therein contained.
IN WITNESS WHEREOF, l have hereunto set my hand and official seal.
Notary Public (SEAL)
Addendum to General Release Agreement
The parties to the General Release Agreement between Arafat Maswadeh (Maswadeh)
and Nadeem Khan (Khan) and State Auto Mutual Insurance Company (State Auto) dated
the day of June, 2001 hereby agrees that the release and settlement is subject
to the following conditions:
Twenty Thousand ($20,000.00) Dollars allocated to Mr. Maswadeh under
the distribution of the $60,000.00 settlement proceed shall be paid into an
escrow account with the Prothonotary of Cumberland County or such other
depository as shall be directed by the court. This $20,000.00 check shall
be made payable by State Auto to the escrow agent as designated by legal
counsel for Maswadeh and Khan.
2. Should Maswadeh be convicted of any of the criminal charges in federal
indictment at 1:01 CR 146, and, after the exhaustion of all appeals, the
said $20,000.00 held in escrow as set forth in Paragraph 1 above shall be
paid to Nadeem A. Khan and his attorney, Hubert X. Gilroy, Esquire.
3. If Maswadeh is found innocent or the charges as referenced in Paragraph 2
above are dismissed, the $20,000.00 shall be paid by the escrow agent to
Mr. Maswadeh and his counsel, Peter B. Foster, Esquire.
4. The remaining $40,000.00 from the settlement shall be made payable to
Nadeem Khan and his counsel, Hubert X. Gilroy, Esquire.
5. This settlement is conditioned upon the Court of Common Pleas of
Cumberland County approving this settlement and these escrow
arrangements.
Witness
Peter B. Foster, Esquire
Attorney for Arafat Maswadeh
Arafat Maswadeh
Hubert X. Gilroy, Esquire Nadeem A. Khan
Attorney for Nadeem A. Khan
State Auto Mutual Insurance Company
By:
Daniel K. Deardorff
Attorney for State Auto
NOT PRE CEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2663
UNITED STATES OF AMERICA
V.
ARAFAT MASWADEH,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 01-cr-00146-1
District Judge: The Honorable William W. Caldwell
Submitted Under Third Circuit LAR 34.1(a)
March 7, 2003
Before: ROTH, BARRY, and FUENTES, Circuit Judges
(Opinion Filed: March 25, 2003)
OPINION
BARRY, Circuit Judge
On November 26, 2001, after a four-day jury trial, appellant Arafat Maswadeh was
convicted of all counts of which he was indicted, including racketeering, 18 U.S.C. §
EXHIBIT
9 ?/
1952(a)(3), arson, 18 U.S.C. § 844(1), use of fire to commit mail fraud, 18 U.S.C. §
844(h), solicitation to commit arson, 18 U.S.C. § 373, conspiracy to conunit interstate
travel in aid of the above crimes, 18 U.S.C. § 371, and four counts of mail fraud, 18
U.S.C. § 1341. On May 31, 2002, the District Court sentenced Maswadeh to an aggregate
sentence of 360 months imprisonment and five years of supervised release, and ordered
that he pay restitution in the amount of $1,355,358.
On appeal, Maswadeh argues that the District Court erred in numerous ways at
trial and sentencing, including: (1) not postponing the trial in the wake of the tragic
events of September 11, 2001; (2) denying his motion for an order requiring the
government to produce Gi 1io or impeachment material more than one week in advance
of trial; (3) denying his motion for judgment of acquittal based on the insufficiency of
evidence; (4) denying his request to allow a particular exhibit to go to the jury room
unredacted; (5) giving him a one-level upward sentence adjustment for being an organizer
or leader; (6) assessing one criminal history point for a sentence of six-months
imprisonment upon a finding of criminal contempt for non-payment of child support; and
(7) departing upward from the otherwise applicable guideline range by eight offense
levels based on the effect of his arson on the community, its economy, and the victims.
We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and will
affirm.
I.
As we write primarily for the parties, we recount only those facts necessary to our
decision. This prosecution arose from a fire that decimated half of an entire city block in
downtown Carlisle, Pennsylvania in the early morning hours of December 18, 1999.
Investigators determined that the fire, which destroyed or damaged seven businesses and
sixteen residential apartments leaving 55 people homeless, originated in the New York
Deli, on the ground floor of 48 West High Street, a deli owned by Maswadeh. They also
concluded, after finding two red gasoline containers just inside the back door of the deli,
that the cause of the fire was arson. Maswadeh, a Palestinian Arab and naturalized
United States citizen, was implicated in the arson when some of his co-conspirators, who
were under investigation for dealing drugs out of an apartment above the deli, told federal
agents that Maswadeh had wanted the deli burned in order to collect the insurance money.
After Maswadeh was indicted for the arson but prior to trial, the District Court
held a hearing on defense counsel's motions to withdraw as counsel and to revoke the
order of pretrial detention. Maswadeh stated that he had changed his mind and was
satisfied with his present counsel. Defense counsel then informed the Court that he had
recommended to Maswadeh that the trial be postponed to avoid any potential jury bias
against Maswadeh because of his Arab ethnicity or Muslim religion due to the events of
September 11, 2001. Maswadeh, however, expressly told the Court that he did not want
to postpone the trial. The Court observed that it would be willing to do so if Maswadeh
should change his mind before trial. The Court declined to revoke its prior order
detaining Maswadeh pending trial. As part of a later "omnibus" pre-trial motion,
Maswadeh moved for an order requiring the government to provide for early disclosure of
impeachment material to the defense. The Court ordered that the government deliver that
material one week before trial, in keeping with the regular practice of the Court.
At trial, the primary evidence against Maswadeh was the testimony of his three co-
conspirators: Keith Walker, Alonzo "Pooh" Thornton, and Eric "Joe" Anilus. Thornton,
who lived in New York City but dealt drugs in Carlisle through Anilus and others,
testified that in September of 1999, Maswadeh offered to pay him $20,000 to set fire to
the New York Deli while he was out of the country in Israel. Although Thornton did not
follow through with the fire while Maswadeh was in Israel, he ultimately enlisted Keith
Walker, a drug-addict who also lived in New York City, to set fire to the deli for $1,000.
Walker, the only other defendant indicted for the arson (Thornton and Anilus
having pled guilty only to drug charges), testified that Thornton took him to Carlisle by
bus on September 17, 1999. He and Thornton were met by Anilus, who took them to the
apartment over the deli at 48 West High Street, where Thornton had previously stashed
two containers of gasoline. Walker waited in the apartment until approximately 3:00 a.m.
when he went to the back door of the New York Deli, pried off some wood panels using a
crowbar that Anilus had given him, and set the fire. He returned to New York by bus the
next morning. Anilus corroborated Thomton and Walker's testimony at trial. Anilus
4
t
I?
testified that he was present at two different times when he heard Thornton and
Maswadeh discussing the fire, that he went to Maswadeh's house the day before the fire
to obtain the crowbar, and that he showed Walker where the back door of the New York
Deli was and paid Walker $600 cash given to him by Thornton.
Two other witnesses called by the government included Nadeem Khan, who
believed that he had purchased the New York Deli from Maswadeh and was operating the
deli for several weeks before the fire, and Merle "Gene" Miller, the insurance broker who
had issued the insurance policy on the New York Deli. Khan testified that he had
purchased the deli the month before the fire, and believed that Maswadeh had transferred
the insurance to his name. Miller testified that, in August of 1999, at the request of Khan
and Maswadeh, he had drawn up the necessary papers to transfer insurance coverage to
Khan's name, but in late August, Maswadeh told him that the sale had fallen through and
that the insurance should remain in Maswadeh's name.
Defense counsel cross-examined Miller about a memorandum he wrote after the
fire to the State Auto Insurance Companies, the issuer of the policy, which noted, among
other things, that Khan had put in an immediate claim after the fire and seemed very
upset, while Maswadeh did not contact Miller for two days after the fire, and did not seem
very concerned. The memorandum was admitted as a defense exhibit. At the close of
trial, the prosecution successfully objected to Miller's memorandum going into the jury
room unredacted because only a small portion of the memorandum had been discussed in
trial testimony. Although the Court expressed a willingness to allow a redacted version to
go to the jury; no such version of the exhibit was ever submitted to the Court by the
parties or sent to the jury.
Maswadeh's presentence report calculated an offense level of 26 pursuant to
section 2KIA of the Sentencing Guidelines because of Maswadeh's knowing creation of
a substantial risk of death or serious bodily harm with a two level enhancement under
section 3B1.1(c) due to Maswadeh's status as the organizer and manager of the arson.
The presentence report also determined that Maswadeh had four criminal history points,
resulting in a criminal history category of III. One of the criminal history points was
based on Maswadeh's six-month sentence of imprisonment for contempt of court based
on his failure to pay child support, contempt purged two weeks later when Maswadeh
paid the requisite support. The resulting guideline range was 78 to 97 months for all
counts other than count five, which alleged a violation of 18 U.S.C. § 844(h) with a
statutory mandatory minimum of ten years imprisonment to run consecutively with any
other sentence, for a total potential guideline sentence of 198 to 217 months.
At sentencing on May 31, 2002, the District Court heard testimony from two
government witnesses: the mayor of Carlisle testified concerning the damage that the fire
had done to the economy of Carlisle and efforts to revitalize the downtown area, and a
resident of one of the burned apartments testified concerning the emotional difficulties
her children had experienced in the two years since the fire. After hearing the arguments
of counsel, the Court added a two-level enhancement for obstruction of justice, finding
that Maswadeh had committed perjury when he testified at trial, and also departed upward
eight levels, from an offense level of 28 to an offense level of 36. The Court articulated
four grounds for the eight-level departure, adding two levels for each: (1) the danger
posed to the public was in substantially in excess of that involved in an ordinary arson;
(2) the negative effect the fire had upon the revitalization of historic downtown Carlisle;
(3) the negative effect the fire had on eight downtown businesses resulting in a substantial
loss of property, jobs and tax revenue; and (4) the psychological and emotional trauma
suffered by the 55 residents awakened by the fire in the middle of the night and rendered
homeless. After making these adjustments, the District Court sentenced Maswadeh to
360 months imprisonment.
II.
As an initial matter, all of the arguments Maswadeh advances on appeal other than
those dealing with his sentence are patently without merit. We discern no abuse of
discretion in the District Court's decision to proceed with trial in November of 2001
where Maswadeh himself informed the Court that he would rather not postpone the trial
despite the Court's willingness to do so, and where his counsel never moved for a
continuance. Similarly, and wholly apart from the reasons why there should not be a rule
of early disclosure of impeachment material, given that Maswadeh's counsel concedes
that he cannot show that the government's delivery of impeachment materials one week
before trial resulted in any prejudice to the defense case, the District Court's denial of
Maswadeh's motion for earlier production was not reversible error. Cf. United States v.
Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (late discovery warrants reversal only if it
prejudiced defendant). Also, it was well within the District Court's discretion, sce United
States v. Casoni, 950 F.2d 893, 902 (3d Cir. 1992), to deny Maswadeh's request to allow
Miller's lengthy but unredacted memorandum to go to the jury, especially where the
prosecution expressed willingness to allow the jury to have a properly redacted version of
the exhibit.
As for the sufficiency of the evidence, although Maswadeh notes some minor
inconsistencies in the testimony of his co-conspirators at trial, our independent review of
the record shows that the cross-examinations and closing arguments by the defense made
the jury well-aware of these inconsistencies as well as any possible interest in giving
testimony favorable to the prosecution. Thus, it was well within the jury's factfinding
role, after weighing the evidence as a whole, to credit the co-conspirators' testimony.
Viewing, as we must, the evidence in the light most favorable to the government, see
United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997), there was ample evidence to
allow a reasonable jury to find Maswadeh guilty beyond a reasonable doubt.
We thus move to Maswadeh's various objections to his admittedly severe 30 year
sentence. First, he argues that the District Court improperly accepted the presentence
report's recommendation that he be given a two-level enhancement under section
r sue:
3B1.1(c) of the Sentencing Guidelines because he was an "organizer, leader, manager, or
supervisor" of the arson conspiracy. We find this objection without merit. The arson
scheme was conceived by Maswadeh, who recruited accomplices, specified when and
how the crime was to be accomplished, and stood to benefit much more (retaining
$150,000 of the $200,000 in anticipated insurance proceeds) than the other co-
conspirators. According to both the commentary to section 3B 1.1 and this Court's
precedent, these actions clearly clothe Maswadeh as the leader and organizer of the crime
for purposes of the enhancement. See U.S.S.G. § 3B 1.1 cmt. 4; United States v. Gricco,
277 F.3d 339, 358 (3d Cir. 2002).
For his second objection to his sentence, Maswadeh argues that the District Court
erred in calculating his criminal history category. On October 5, 2002, the Court of
Common Pleas of Cumberland County, Pennsylvania, found Maswadeh in contempt of
court for failure to pay child support and sentenced him to six months imprisonment. The
sentence was vacated 15 days later when Maswadeh satisfied his support obligations.
Maswadeh argues that the District Court improperly added one criminal history point for
this six-month sentence for civil contempt because it was not a criminal conviction. We
disagree. The District Court properly included the contempt sentence pursuant to the plain
language of section 4A1.2(c) of the Sentencing Guidelines, which expressly provides for
the inclusion of a sentence for an offense that is "similar" to a list of minor offenses,
citing both "Contempt of Court" and "Non-Support." U.S.S.G. § 4A1.2(c).
9
Finally, we address Maswadeh's contention that the District Court erred in
ordering an eight level upward departure from the otherwise applicable offense level of
28. In reviewing the District Court's decision to depart, we must determine whether the
factors relied on by the Court were appropriate and whether the extent of the departure
was reasonable. United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir. 1990). In other
words, in order for the departure to be justified, Maswadeh's crime must fall outside the
"heartland" of the typical arson, rendering him culpable in ways not adequately taken into
account by the Sentencing Guidelines. See Koon v.United States, 518 U.S. 81, 98 (1996);
see also 18 U.S.C. § 3553(b) (requiring a sentence in accordance with the guidelines
unless "there exists an aggravating or mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing Commission in formulating the
guidelines"). We consider in turn each of the four grounds upon which the District Court
justified the four two-level upward departures.
The first ground for departure articulated by the District Court was that the arson
involved a "danger to the public that was present to a degree substantially in excess of
that which is ordinarily involved in a case of this type." While Maswadeh correctly notes
that section 2K1.4(a)(1) of the guidelines already provides for an increase in the base
offense level if the arson created a risk of death or bodily harm to non-participants or
destroyed a dwelling, we cannot conclude that the District Court erred in concluding that
the fire caused by Maswadeh caused an entirely different magnitude of risk to innocent
10
parties "substantially in excess" of the risks caused by an ordinary arson. See U.S.S.G. §
5K2.0. Here, the evidence shows that the fire, started in the middle of the night in a
building which contained several residential apartments, and adjacent to buildings which
contained several more residential apartments, created a significant risk of injury and
death to more than fifty innocent individuals including many small children.
Accordingly, we will affirm the two-level upward departure in light of this
unconscionable risk caused by Maswadeh.
The second ground for departure articulated by the District Court was the setback
to the revitalization efforts in downtown Carlisle caused by the irreparable damage to its
downtown historic district. Section 2KI. A(a)(3) of the guidelines only incorporates
consideration of the amount of the loss occasioned by arson if the arson did not create a
risk of death to innocents or destroy a dwelling. Section 5K2.5, however, expressly
authorizes an upward departure where the guidelines do not adequately account for the
value of lost property, particularly when the harm was "knowingly risked" and the extent
to which "the harm to property is more serious than other harm ... risked by the conduct
relevant to the offense of conviction." U.S.S.G. § 5K2.5. Given the devastation that the
fire visited upon downtown Carlisle and the dim prospects for redevelopment of the area,
the District Court's two-level departure on this ground was not error. Cf. United States v.
Medford, 194 F.3d 419, 425 (3d Cir. 1999) (authorizing upward departure where
intangible value of cultural objects stolen from museum was not adequately accounted for
11
by market valuation).
The ground articulated by the District Court for the third two-level upward
departure was the fire's destruction of or serious damage to eight downtown businesses,
and the resulting loss of jobs, income and tax revenues. We find that this departure
correctly takes into account the economic effects on local residents and the local economy
not adequately accounted for in the arson guidelines calculation for this extraordinary fire.
This recognition of the effect of the fire not only on the historic downtown, but on the
financial realities of those who lived and worked there, was an appropriate ground for
departure not adequately accounted for by the guidelines.
Finally, the fourth ground articulated by the District Court for a two-level upward
departure was the psychological and emotional trauma suffered by the individuals
awakened in the middle of the night and rendered homeless by the fire. At sentencing,
one of the individuals who lived above the New York Deli and barely escaped with her
life testified that her three children were in fear and suffered emotional problems in the
years since the fire, a fire in which the family lost everything, including pets. The Court
found that all of the 55 residents displaced by the fire also suffered similar emotional
consequences from the fire and their ensuing homelessness. This emotional devastation
to a whole community of displaced residents also distinguishes this case from a typical
arson and justified the District Court's final two-level upward departure.
M.
12
e find no reversible error in the District Court's
it sentencing. Accordingly, we will affirm
:e.
/s/ Maryanne Trump Barry
Circuit Judge
SUBM. ghb
CLOSED
GENERAL DOCKET FOR
Third Circuit Court of Appeals
Court of Appeals Docket #: 02-2663 Filed: 6/17/02
Nsuit: 0
USA v. Maswadeh
Appeal from: U.S. District Court for the Middle District of Pennsylvania
Lower court information:
District: 0314-3 : 01-cr-00146-1
Trial Judge: William W. Caldwell,
Court Reporter: Monica L. Zamiska
Court Reporter: Vicki L. Fox
Date Filed: 4/25/01
Date order/judgment: 6/3/02
Date NOA filed: 6/6/02
District Judge
Fee status: Appoint Cont. fr DC
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Prior cases:
None
Current cases:
None
Docket as of October 27, 2003 2:24 pm
Page 1 EXHIBIT
«c»
9
MPWJ.'y..:.. ....
Proceedings include all events.
02-2663 USA v. Maswadeh
UNITED STATES OF AMERICA
Appellee
V.
ARAFAT MASWADEH
Appellant
Docket as of October
Theodore B. Smith, III
FAX 717-221-4582
717-221-4482
Suite 220
[COR NTC gvt]
Office of United States
Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
Daniel M. Pell
FAX 717-852-8900
717-843-7801
Unit 2 West
[COR NTC dcj1
1215 East Market Street
York, PA 17403
SUBM. ghb
CLOSED.
SUBM. glib
CLOSED
Proceedings include all events.
02-2663 USA v. Maswadeh
UNITED STATES OF AMERICA
V.
ARAFAT MASWADEH,
Appellant
Docket as of October 27, 2003 2:24 pm Page 3
Proceedings include all events.
02-2663 USA v. Maswadeh
-SUBM. ghb
CLOSED.
6/17/02 Criminal Case Docketed. Notice filed by Arafat Maswadeh.
(j ac)
6/17/02 RECORD available on Middle District PA RACER. (Judgment and
Commitment, Notice of Appeal and Docket Sheet) (jac)
6/17/02 ORDER appointing CJA counsel, Daniel M. Pell, Esq. to
represent Appellant Arafat Maswadeh, filed. (jac)
6/24/02 APPEARANCE from Attorney William A. Behe, Esq., on behalf of
Appellee USA filed. [WITHDRAWN - 9/27/021 (jac)
6/27/02 APPEARANCE from Attorney Daniel M. Pell, Esq., on behalf of
Appellant Arafat Maswadeh, filed. (jac)
6/27/02 INFORMATION STATEMENT on behalf of Appellant Arafat
Maswadeh, received. (jac)
6/27/02 TRANSCRIPT PURCHASE ORDER (Part I), ordering a transcript
of the proceedings, filed. (jac)
6/28/02 ORDER to Vicki L. Fox directing transcript, ordered on
6/26/02, to be filed by 7/29/02, filed. (lac)
7/16/02 TRANSCRIPT PURCHASE ORDER (Part I), ordering a transcript
of the proceedings, filed. (jac)
7/16/02 ORDER to Monica L. Zamiska directing transcript, ordered on
7/11/02, to be filed by 8/13/02, filed. (jac)
7/25/02 TRANSCRIPT PURCHASE ORDER (Part III) notifying transcript by
Monica L. Zamiska filed in D.C., filed. (jac)
7/29/02 TRANSCRIPT PURCHASE ORDER (Part III) notifying transcript
by Vicki L. Fox filed in D.C., filed. (jac)
7/31/02 BRIEFING NOTICE ISSUED. Appellant's brief and appendix due
8/30/02. (jac)
8/29/02 BRIEF/APPENDIX volume I on behalf of Appellant Arafat
Maswadeh, Pages: 34, Copies: 10, Word Count: Under 14,000,
Delivered by mail, filed. Certificate of service date
8/29/02. (mcw)
8/29/02 APPENDIX on behalf of Appellant Arafat Maswadeh, Copies: 4,
Volumes: 3, Delivered by mail, filed. Certificate of
service date 8/29/02. (Volume I attached to appellant's
brief). (mcw)
8/29/02 PRESENTENCE REPORT and STATEMENT OF REASONS (4 ccs)
received. [UNDER SEAL] SEND TO MERITS
PANEL (mcw)
Docket as of October 27, 2003 2:24 pm Page 4
SUBM. ghb
CLOS$D.
Proceedings include all events.
02-2663 USA v. Maswadeh
9/13/02 Appellee USA verbally granted an extension of time until
10/07/02 to file br pursuant to LAR 31.4. (bab)
9/13/02 MOTION by Daniel M. Pell, Esquire, counsel for Appellant,
Arafat Maswadeh, for approval of advance brief and appendix
reproduction expenses, filed. (jht)
9/16/02 Letter from Appellee USA confirming extension of time
pursuant to LAR 31.4 with service on opposing counsel.
Service Date 9/13/02. (nmb)
9/27/02 WITHDRAW OF APPEARANCE: Attorney William A. Behe, Esq., for
Appellee, USA, withdrawing appearance. (jac)
9/27/02 APPEARANCE from Attorney Theodore B. Smith, Esq., on behalf
of Appellee USA, filed. (jac)
9/30/02 MOTION filed by Daniel M. Pell, Esquire, counsel for
Appellant Arafat Maswadeh requesting reimbursement for
reproduction costs, filed. (jht)
10/7/02 BRIEF on behalf of Appellee USA, Pages: 53, Copies: 10,
Word Count: 11,223, Delivered by mail, filed. Certificate
of service date 10/7/02. (mcw)
10/8/02 CJA Form 21 Voucher approved by McKee, Authoring Judge, for
expenses 589.40 and electronically transmitted to AO for
payment, filed. (jht)
1/16/03 CALENDARED for Friday, March 7, 2003. (mac)
3/7/03 SUBMITTED Friday, March 7, 2003 Coram: Roth, Barry and
Fuentes, Circuit Judges. (eh)
3/25/03 NOT FOR PUBLICATION NOT PRECEDENTIAL REPORTED OPINION
(Roth, Barry, Authoring Judge, and Fuentes, Circuit
Judges), filed. Total Pages: 13. (arl)
3/25/03 JUDGMENT, Affirmed, filed. (arl)
4/16/03 MANDATE ISSUED, filed. (ghb)
A TiiUE Copy:
7. os?
EILEEZi 0014DON ROTH,
Doputy Clark
Docket as of October 27, 2003 2:24 pm Page 5
'r Q) >-
[f; C F
'.J... - .Fll
I!
ARAFAT MASWADEH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v CIVILACTION-LAW
NADEEM A. KHAN, : NO. 9`1- 7550
Defendant
v
STATE AUTO INSURANCE,
Intervenor
COURT ORDER
AND NOW, this day of December, 2003, upon consideration of the attached
Petition to Make Rule Absolute and it appearing that Plaintiff Arafat Maswadch was found
guilty of all counts filed against him in a Federal indictment in the Middle District of
Pennsylvania at Docket Number 1:02-DR-146, and it further appearing that the United
States Court of Appeals for the Third Circuit has affirmed said conviction and that Mr.
Masivadeh has taken no further appeal from the affirmance of his conviction and the time
limit for filing an appeal has elapsed, and it appearing that a Rule to Show Cause having
been issued upon Plaintiff Arafat Maswadeh and Intervenor State Auto Insurance by
Order of November 6, 2003 directing them to show cause why Plaintiffs requested relief
should not be granted and neither party having taken any action in response to the Rule to
Show Cause, it is hereby ordered and directed as follows:
1. The Cumberland County Prothonotary shall pay to Nadeem A. Khan the
sum of S20,000.00 which the Prothonotary has been holding in its account
pursuant to this court's September 15, 2001 Order. Said payment shall be
made in the form of a check made payable as follows: "Nadeem A. Khan and
his attorney, Hubert X. Gilroy, Esquire", and said check shall be delivered to
Attorney Gilroy.
BY THE COURT,
By:
, esley Oler, . . ?-
cc: Aubert X. Gilroy, Esquire - hand a-CLI-O
Daniel K. Deardorff, Esquire
Peter B. Foster
?rafat Maswadch
McKean n F 7 1
McKean
P.O. Box 500 5000
Bradford, PA 16701
?OSkeR la-?
c;,rr`agii "PA,
ARAFAT MASWADEH,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NADEEM A. KHAN,
Defendant
STATE AUTO INSURANCE,
Intervenor
: NO. 99 - 7750
PETITION TO MAKE RULE ABSOLUTE
Petitioner, Nadeem A. Khan, by his attorneys, Broujos & Gilroy, P.C., sets forth the
following:
On November 3, 2003, Petitioner tiled a Motion with this court requesting that the court
release to the Petitioner the sum of S20,000.00 which is being held by the Cumberland
County Prothonotary pursuant to prior Order of Court dated September 15, 2001.
By Order of November 6, 2003, this court issued upon Plaintiff Arafat Maswadch and
Intervenor State Auto Insurance a Rule to Show Cause why Petitioner's request should not
be granted. The Rule was listed as returnable within 20 days from the date of the Order. A
copy of said Order of Court is attached hereto and marked Exhibit "A".
More than 20 days has elapsed from the date of the November 6, 2003 Order of Court and
neither Plaintiff Arafat Maswadeh or Intervenor State Auto Insurance has taken any
action in connection with responding to Petitioner's request.
WHEREFORE, Petitioner requests your Honorable Court to make the Rule absolute and
to grant the relief requested by the Petitioner in his motion.
Respectfully submitted,
Hubert X. Gilroy, Esqui
Attorney for Plaintiff
Broujos & Gilroy, P .
4 North Hanover Street
Carlisle, PA 17013
(717) 243-4574
Supreme Court ID No. 29943
.11
ARAFAT MASWADEH, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
NADEEM A. KHAN,
Defendant
V.
STATE AUTO
INSURANCE,
Intervenor NO. 99-7550 CIVIL TERM
ORDER OF COURT
AND NOW, this 6a' day of November, 2003, upon consideration of Defendant's
Motion, a Rule is hereby issued upon Plaintiff and Intervenor to show cause why the
relief requested should not be granted.
RULE RETURNABLE within 20 from the date of the order.
Peter B. Foster, Esq.
Attorney for Plaintiff
Arafat Maswadeh
#10652-067
McKean FCI
P.O. Box 5000
Bradford, PA 16701
Plaintiff
TRUE COPY FROM RECORD
In Tostlmny whereof, I here unto set my hand
and tho seal of said Court at farflab, pa.
This G °e day ??
EXHIBIT Prothonotarif
9 A
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BY THE COURT,
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12040912032003 Cumberland County Prothonotary's office 12%09%2003
PYS405 Manual Release Check Register
Escrow Tran Date
,._ n r%„n t- inn Amount Date Release
---
----- ----- ----- ---- ----- ---- ----
---- ------ ------ -
Check Date: 12/03/2003 Check No.: 1395
3721 GILROY HUBERT H
BOND 1999- 07550 TRNS ESC IN 19780.00 12/03/2003
Payee total: 19780.00
-----------------------------------------------
Grand total: 19,780.00
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RECEIPT FOR TRANSFER
--------------------
--------------------
Cumberland County Prothonotary's Office
Carlisle, Pa 17013
MASWADEH ARAFAT
335 NORTHWEST
CARLISLE, PA 17013
Case Number 1999-07550
Remarks RELEASE BOND & POUNDAGE
Receipt Date 12/03/2003
Receipt Time 12:01:40
Receipt No. 145121
---------------------- Distribution Of Adjustment ---------------------------
Transaction Payee This Adj
BOND PROTHONOTARY ESCROW 19,780.00-
BOND GILROY HUBERT H 19,780.00
BOND PROTHONOTARY ESCROW 220.00-
BOND CUMBERLAND CO GENERAL FUND 220.00