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Home My WebLink About03-2845AMERICANA FINANCIAL SERVICES OF PENNSYLVANIA, INC., Plaintiff V. HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE, and HIBBERD BROTHERS INSURANCE, in its own right, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. P3' o2?y3 PRAECIPE FOR ISSUANCE OF WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue Writs of Summons against the following Defendants: Hibberd Brothers, Inc. d/b/a Hibberd Brothers Insurance 210 West State Street Media, PA 19063 Hibberd Brothers Insurance, in its own right 210 West State Street Media, PA 19063 GODFREY & COURTNEY, P.C. By E. Ralph Godfrey, Esquire Attorney I.D. No. 77052 P.O. Box 6280 Harrisburg, PA 17112 (717) 540-3900 9 Attorneys for Plaintiff Date: (Q ` I.J ` 0,3 Ci C? ?\ vJ 0 O ? d CA Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS AMERICAN FINANCIAL SERVICES OF PENNSYLVANIA, INC. Plaintiff Vs. Court of Common Pleas No. 03-2845 In CivilAction-Law HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE, and HIBBERD BROTHERS INSURANCE, in its own right 210 W. STATE ST. MEDIA PA 19063 Defendant To BIBBERD BROTHERS, INC., d/b/a HIBBERD BROTHERS INSURANCE, and HIBBERD BROTHERS INSURANCE, and HIBBERD BROTHERS INSURANCE, in its own right; You are hereby notified that AMERICAN FINANCIAL SERVICES OF PENNSYLVANIA, INC. the Plaintiff has / have commenced an action in Civil Action- Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) Date JUNE 18, 2003 Attorney: Name: E. RALPH GODFREY Address: P O BOX 6280 CURTIS R. LONG Prothonotary B 7' Deputy HARRISBURG PA 171112 Attorney for: Plaintiff Telephone: (717) 540-3900 Supreme Court ID No. 77052 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-02845 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND AMERICANA FINANCIAL SERVICES VS HIBBERD BROTHERS INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: HIBBERD BROTHERS INC D/B/A HIBBERD BROTHERS INSURANCE but was unable to locate Them deputized the sheriff of DELAWARE in his bailiwick. He therefore County, Pennsylvania, to serve the within WRIT OF SUMMONS On July 14th , 2003 , this office was in receipt of the attached return from DELAWARE Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Delaware Cc 43.05 .00 80.05 07/14/2003 GODFREY & COURTNEY So answers: / R.. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this L day of 01 2LV-3 A. D. L?r,-_ (,). `hu new. Prothonot? y SHERIFF'S RETURN - OUT OF COUNTY -CASE NO: 2003-02845 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND AMERICANA FINANCIAL SERVICES VS HIBBERD BROTHERS INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: HIBBERD BROTHERS INSURANCE but was unable to locate Them deputized the sheriff of DELAWARE in his bailiwick. He therefore County, Pennsylvania, to serve the within WRIT OF SUMMONS On July 14th , 2003 , this office was in receipt of the attached return from DELAWARE Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 07/14/2003 GODFREY & COURTNEY So an? '- R.` Thomas Kline G Sheriff of Cumberland County Sworn and subscribed to before me this G r?_, day of Q? a-Zt A.D. Prothonotary In The Court of Common Pleas of Cumberland County, Pennsylvania Americana Financial Services of Pennsylvania Inc vs. Hibberd Brothers Inc et al SERVE: Hibberd Brothers Inc dba 03-2845 civil Hibberd Brothers Insurance No. Now, June 19, 2003 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do. hereby deputize the Sheriff of Delaware County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to , 20, at o'clock M. served the copy of the original the contents thereof. So answers, Sheriff of Sworn and subscribed before me this day of 20 COSTS SERVICE MILEAgE AFFIDAVIT County, PA R. THOMAS KLINE Sheriff EDWARD L. SCHORPP Solicitor ?4,??t? of CCum?ett? d OFFICE OF THE SHERIFF 6 a-f- ,3 RONNY R. ANDERSON Chief Deputy JODY S. SMITH Real Estate Deputy One Courthouse Square Carlisle, Pennsylvania 17013 1 ? ? I ? ??03 a2c,?p`? TO: Hon. Chad Kenney RE: Americana Financial Services of PA Delaware County Sheriff VS Hibberd Brothers Inc et al 03-2845 civil Dear Sir: Enclosed please find writ of Srsrmons 1. Hibberd Brothers Inc dba Hibberd Brothers Insurance to be served upon ... _..,_.... . 210•d t.&t,ate street Media, PA 19053 in your County. Kindly make service thereof and send us your return of service. Enclosed is the advance payment which you requested. d 9'7'a'Lb°? a3 5,10,fo N146%o S40714«.S /9 r ay /?Av?; J c'o!y o?tGCir T? a cee2 S f?lyuti y Enclosures: '^ - 4- NOTARIAL SEAL SHERI L. ZUPPO, No( Public Media Born., Delaware Counb My Cornndssion Expires August 24, 2005 Vs, //.. R. Thomas Kline, Sheriff Cumberland County, Pennsylvania bdm ow -11 it 10"? /??iLEGIJ S? ZMNN,EeZIAIC In The Court of Common Pleas of Cumberland County, Pennsylvania Americana Financial Services of Pennsylvania Inc vs. Hibberd Brothers Inc et al SERVE: Hibberd Brothers Insurance No 03-2845 civil No. Now, June 19, 2003 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Delaware County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, , 20 , at o'clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sworn and subscribed before me this day of , 20_ Sheriff of COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA ?SwLw R. THOMAS KLINE Sheriff EDWARD L. SCHORPP Solicitor ",City of cumbetz Xr6R: ? ?l:'?J OFFICE OF THE SHERIFF -.. -i -j 3 RONNY R. ANDERSON Chief Deputy JODY S. SMITH Real Estate Deputy One Courthouse Square Carlisle, Pennsylvania 17013 TO: Hon. Chad Kenney Delaware County Sheriff Dear Sir: RE: ericana Financial Services of PA VS Hibberd Brothers Inc et al 03-2845 civil Enclosed please find writ of Summons N, to be served upon 2 Hihberd trothers Insurance 210 welat state street Media, PA 19063 in your County. Kindly make service thereof and send us your return of service. Enclosed is the advance payment which you requested. 7-7 a??3 a? 62- Very tr12,V;' R. Thomas Kline, Sheriff E/Ge?N 5 : y y?1tiu ?D? "c $A:o /aoP?GSS Cumberland County, Pennsylvania ? _ nclosures: L NOTARIAL 5 L I $INplp K1 ?11d baton t1M SHERI L. ZUPPO, Notary Public Media Bbro., Delaware County 1??? ?• My Commission Expires August 24, 2005 1Ii1 103 GODFREY & COURTNEY, P.C. BY: E. Ralph Godfrey, Esquire Attorney I.D. No. 77052 17 W. South Street Carlisle, PA 17013 Attorney for Plaintiff AMERICANA FINANCIAL SERVICES OF PENNSYLVANIA, INC. n/k/a AMERICANA PROGRAM UNDERWRITERS, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE and HIBBERD BROTHERS INSURANCE, in its own right, Defendants To: Hibberd Brothers, Inc. d/b/a Hibberd Brothers Insurance Hibberd Brothers Insurance, in its own right NO. 03-2845 You have been sued in court. If you wish to defend against the claims set forth in the following take action within twenty (20) days after the Complaint and notice are serv entering a written personally or by attorney and filing in writing with the court your defenses or objections to the claims set pages you ed, or against you. You are warned that if you fail to do so the case may proceed without you and a judgment may berance entered against you. You are warned that be entered against you by the Court if you fail to do so the case may proceed without you and a judgment may without further notice for any money claimed in the Complaint or for any other 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 OigCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CAN NOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Effective September 1, 2003 Complaint EN LA CORTE DE ALEGATOS COM tJN DEL CONDADO DE Cumberland, PENNSYLVANIA DIVIS16N CIVIL AV I S O PARA DEFENDER Conforme a PA Num. 1018.1 USTED RA SIDO DEMANDO/A EN LA CORTE. Si usted desea defender conta In demands puestas en las siguientes paginas, usted tienen que tomar acci6n dentro veinte (20) dias despues que esta Demands servido, con entrando por escrito una aparencia personalmente o por un a.bogado y archivan do por escrito con la Corte sus defenses o objeciones a ]as demandas puestas en contra usted. Usted es advertido que si falls sc hacerl el caso puede proceder sin usted y un jszgamiento puede ser entrado contra usted por la Corte sin mss aviso por cualquier dinero reclamado en la Demands o por cualquier otro reclamo o alivio solicitado por Demandante. Ustedpuede perder dinero 0 propiedad o otros derechos importante Para usted. USTED DEBE LLEVAR ESTE PAPEL A SU ABOGADO ENSEGUIDA. SI USTED NO TIENE UN ABOGADO, VAYA O LLAME POR TELEFONO LA OFICINA FIJADA AQW ABAJO. ESTA OFICINA PUEDE PROVEERE CON INFORMAC16N DE COMO CONSEGUIR UN ABOGADp SI USTED NO PUEDE PAGARLE A UN ABOGADO, ESTA OFICINA PUEDE PROVEERE INFORMACI6N ACERCA AGENCIAS QUE PUEDAN OFRECER SERVICIOS LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O GRATIS. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Ellivo 1 de septiembre, 2003 Queja AMERICANA FINANCIAL SERVICES OF PENNSYLVANIA, INC. n/k/a AMERICANA PROGRAM UNDERWRITERS, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION-LAW HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE, and HIBBERD BROTHERS INSURANCE, in its own right, Defendants NO. 03-2845 COM-- PLAINT AND NOW, comes the Plaintiff, Americana Financial Services of Pennsylvania, Inc. n/k/a Americana Program Underwriters, Inc., by and through its attorneys, E. Ralph Godfrey, Esquire and Godfrey & Courtney, P.C., and avers as follows: I . Plaintiff, Americana Financial Services, Inc. n/k/a Americana Program Underwriters, Inc., ("Plaintiff) is a Pennsylvania Corporation with a principal place of business located at 355 North 21s` Street, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendant, Hibberd Brothers, Inc. d/b/a Hibberd Brothers insurance, is a Pennsylvania Corporation ("Defendant') with a principal place of business located at 210 W. State Street, Media, PA 19063 and at all times relevant hereto was a broker and/or agent for the placement of insurance. 3. Defendant, Hibberd Brothers Insurance in its own right, is Pennsylvania entity with a ("Defendant a principal place of business located at 210 W. State Street, Media, PA 19063 and at all times relevant hereto was a broker and/or agent for the placement of insurance. 4• On or about January 1, 1999, Defendants placed a policy of insurance for the Township of Nether Providence with Marsh USA, Inc. f/k/a Sedwick of PA, Inc. Said policy had a group number of GP09000390. Said insurance was placed with St. Paul Mercury Insurance Company. 5. The policy required four quarterly premium payments from Defendants to Marsh USA, Inc. f/k/a Sedwick of PA, Inc. in equal amounts of Sixteen Thousand Five hundred Eighty Six and 00/100 dollars ($16,586.00). The premium payments were due on January 1, 1999, April 1, 1999, July 1, 1999 and October 1, 1999. 6. The Defendants were entitled to a commission of One: Thousand Six hundred Fifty Eight and 69/100 dollars ($1,658.69) per payment reducing the quarterly premium payment to Fourteen Thousand nine hundred Twenty Seven and 31/100 dollars ($14,927.31). 7. On or about May, 1999, the book of insurance, including the policy issued to the Township of Nether Providence, owned by Marsh USA, Inc. f/k/a. Sedwick of PA, Inc. was purchased by Plaintiff. 8. As a result of this purchase, all remaining premiums became due and owing to Plaintiff. The remaining premium balance at the time of the purchase was Thirty Three Thousand One Hundred Seventy Two and 00/100 Dollars ($33,172.00). 9. Defendant was notified of the purchase and the requirement that all future payments were to be made to Plaintiff. 10. On July 1, 1999 an invoice was sent by Plaintiff to Defendant notifying Defendant that a premium payment in the amount of Fourteen Thousand Nine hundred Twenty Seven and 40/100 dollars ($14,927.40) was due. 11. On October 1, 1999 a 2nd invoice was sent by Plaintiff to Defendant notifying Defendant that a 2"d premium payment in the amount of Sixteen Thousand Five hundred Eighty Six and 00/100 dollars ($16,586.00) was due. 12. Defendants have never made the payment required by the July 1, 1999 invoice. 13. On or about January 1, 2000, Defendants placed a policy of insurance for workers compensation for the Borough of Media with Plaintiff. The premium for this policy was Six Hundred Eighty One and 00/100 dollars ($681.00). After a reduction of the premium by the Defendants' commission, the amount of Four Hundred Twenty ;and 08/100 dollars ($420.08) became due and owing to Plaintiff. 14. On or about February 1, 2000, Defendants placed a 2nd policy of workers compensation insurance for the Borough of Media With Plaintiff. The premium for the policy was Eleven Thousand Six hundred Eighty Five and 00/100 dollars ($11,685.00). After a reduction of the premium by Defendants' commission, the amount of Eleven Thousand One hundred and 75/100 dollars ($11,100.75) became due and owing to Plaintiff. 15. Despite Plaintiff's reasonable and repeated demands for payment, Defendants have failed, refused and continues to refuse to pay all premiums due and owing as a result of the insurance policies placed with Plaintiff. 16. Plaintiff has performed any and all conditions precedent to the bringing of this action. 17. As a result of Defendants failure to pay the required premiums, Plaintiff has been damaged in the amount of Twenty Six Thousand Four hundred Forty Eight and 23/100 dollars ($26,448.23). COUNTI BREACH OF ONTRACT 18. The averments of paragraphs 1 through 17 are hereby incorporated by reference. 19. Plaintiff, relying upon the representations and assurances made by Defendants, Plaintiff accepted business and placed insurance on behalf of Defendants. 20. Defendants breached the oral contract by failing to pay the premiums as required by the placement of insurance with Plaintiff. 21. Because of Defendants' breach of the oral agreement, Plaintiff has been damaged in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars, plus costs, attorney fees and interest. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendants in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars, plus interest, reasonable attorney's fees, the costs of this action, and such other relief as the Court deems just and proper. COUNT QUANTUM n'IERUIT 22. Paragraphs 1 through 21 are incorporated herein by reference as if set forth in their entirety. 23. Plaintiff conferred a benefit in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars, upon Defendants in return for Defendants' promise to pay the premiums. 24. Defendants misled Plaintiff with their assurances and representations that they would pay the premiums for the insurance placed on their behalf. 25. Relying upon the representations and assurances of Defendant Pl .1 aultill Placed insurance for a total of Twenty Six Thousand Four Hundred Forty Eight and 23 /100 ($26,448.23) Dollars. 26. Defendants accepted and retained the benefits provided by Plaintiff, but failed to make the required premium payments and, as a result, Defendants have been unjustly enriched in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars. 27. The aforesaid amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars is the fair and reasonable value of the services/monies provided to Defendants by Plaintiff. 28. Despite Plaintiff's reasonable and repeated demands for payment, Defendants have failed, refused and continues to refuse to pay the fair and reasonable value of the services/monies rendered to Defendants plus any accrued interest, costs, expenses, and attorney fees, all to the damage of Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendants in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars, plus interest, reasonable attorney's fees, the costs of this action, and such other relief as the Court deems just and proper. COUNT III UNJUST E RIN CCHHMENT 29. Paragraphs 1 through 28 are incorporated herein by reference as if set forth in their entirety. 30. Defendants would be unjustly enriched if it were permitted t services/monies o benefit from the provided by Plaintiff without paying the monies owed to Plaintiff; 31. The aforesaid services/monies provided by Plaintiff and accepted by Defendants have enriched Defendants in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars, 32• Said enrichment would be unjust if Defendants were not required to pay the monies owed to Plaintiff, and said Defendants accordingly is obligated to Plaintiff for said amount. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendants in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars, plus interest, reasonable attorney's fees, the costs of this action, and such other relief as the Court deems just and proper. GODFREy & COURTNMI, P.C. By /? alp Godfrey,/Esgw Attorney I.D. No. 77052 17 W. South Street Carlisle, PA 17013 (717) 243-5100 Attorneys for Plainti ff Dated: p VERIFICATION I, Robert S. Noggle, CPA, Chief Financial Officer of Americana Financial Services of Pennsylvania, Inc. n/k/a Americana Program Underwriters, Inc., hereby certify that the facts set forth in the foregoing Complaint are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Complaint is that of counsel and not my own. I have read the Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Complaint is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Civil Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating; to unsworn falsification to authorities. Robert S. Noggle, CI?,?E' Date: 71Z 71d 5/ CERTIFICATE OF SERVICE AND NOW, this 3 R p day of August, 2004, I, E. Ralph Godfrey, Esquire, do hereby certify that I, this day, served a copy of the Plaintiff's Complaint by Regular Mail to the following parties: Hibberd Brothers, Inc, d/b/a Hibberd Brothers Insurance Hibberd Brothers Insurance, in its own right 210 West State Street Media, PA 19063 GODFREY & COURTNEY, P.C. By E. Ralph Godfrey, Fy, n ca O c?'r -n'rn <; W ?"?'? C y ? r -TI in You are hereby notified to plead to the enclosed Pleading within twenty (20) days from service may here be entered against you. DALY, GORBEY & O'BRIEN, P.C. BY: DEBORAH A•KRULL,ESQUIRE ATTORNEY I.D. NO. 69948 110 WEST FRONT STREET P.O. BOX 199 MEDIA, PA 19063 610-565-7520 AMERICAN FINANCIAL SERVICES OF PENNSYLVANIA, INC' nWa AMERICAN PROGRAM UNDERWRITERS, Plaintiffs L'Y? GORBEY & 'BRIEN, P.C. -- 4,aorney For IanitifflDefendant Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW Vs. HIBBERD BROTHERS, INC. d/b/a INSURANCE HIBBERD BROTHERS e 1. 2. NO. 03-284.5 ANSWER AND NEW MATTER Admitted upon information and belief. Denied as stated. It is admitted only that Hibberd Brothers, Inc. is a Pennsylvania with a principal place of business located at 210 W Hibberd Brothers, Inc State Street, Media, PA 19063 and that is a broker and/or agent for the placement of insurance. All other allegations, whether express or implied, are specifically denied. answer, the proper corporate entity is Hibberd Brothers, Inc., Defendant. Denied as stated for the reasons cited in paragraph 2 herein. By way of further which is the only proper 4. Admitted. Admitted in part and denied in part. It is admitted only that the policy required four quarterly premium payments from Defendant to Marsh USA, Inc. fk/a Sedgwik of PA, Inc. Except as expressly admitted herein, the remaining averments of Paragraph 5 of the Complaint are denied and strict proof is demanded at trial.. Admitted in part and denied in part. It is admitted only that Defendant was entitled to a commission of a certain percentage. Except as expressly admitted herein, the averments of Paragraph 6 of the complaint are denied and strict proof is demanded at trial. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 7 of the Complaint, and accordingly such 6. 8. 9. 10. allegations are deemed denied. . Defendant is without knowledge or information sufficient to form a belief as to Denied the truth of the allegations of Paragraph 8 of the Complaint, and accordingly such allegations are deemed denied. and denied in part. It is admitted that at some point in time, Defendant Admitted in part was notified of the purchase of Marsh USA, Inc. f/k/z Sedgwick of PA, Inc. Expect as expressly admitted herein, the averments of Paragraph 9 of the Complaint are denied and strict proof is demanded at trial. . Defendant has no recollection of receiving said invoice from plaintiff and Denied accordingly the averments of Paragraph 10 of the Complaint are denied and strict proof is demanded at trial. By way of further answer, plaintiff received an invoice number 499850 dated July 31, 1999 from Sedgwick in the amount of $14,787.90 which invoice was paid by Defendant to Sedgwick on September 20, 1999. 11. Denied. Defendant has no recollection of receiving said invoice and accordingly the averments of Paragraph 11 of the Complaint are denied and strict proof is demanded at trial. By way of further answer, the dollar number cited by Plaintiff does not correspond with the amount plaintiff alleged was due in paragraph 6 herein as a quarterly payment. 12. Denied. By way of further answer, Defendant remitted $26,448.23 to Sedgwick during the transition period when Americana was purchasing Sedgwick for the Borough of Media and Township of Nether Providence policies. Defendant believes and therefore avers that Defendant was not properly credited for this payment by Plaintiff. 13. Admitted in part and denied in part. It is admitted that'Defendant placed a policy of insurance for workers compensation for the Borough o1.' Media with Plaintiff. It is denied that the premium for this policy was Six Hundred Eighty One and 00/100 dollars ($681.00). It is denied that after a reduction of the premium by the Defendant's commission, the amount of Four Hundred Twenty and. 08/100 dollars ($420.08) became due and owing to Plaintiff. Defendant believes and therefore avers that plaintiff does not have the correct dollar figures for the Borough of Media policy. By way of further answer, Defendant believes and therefore avers that the Borough of Media policy and premium amount has no bearing to the disputed amount and therefore is not relevant to Plaintiff s claim. 14. Admitted in part and denied in part. It is admitted that Defendant placed a policy of insurance for workers compensation for the Borough of Media with Plaintiff. It is denied that the premium for this policy was Eleven Thousand Six hundred Eighty Five and 00/100 dollars ($11,685.00). It is further denied that after a reduction of the premium by 3 the Defendant's commission, the amount of Four Hundred Twenty and 08/100 dollars ($420.08) became due and owing to plaintiff. Defendant believes and therefore avers that plaintiff does not have the correct dollar figures for the Borough of Media Po Media way of further answer, Defendant believes and therefore avers that the Borough policy and premium amount has no bearing to the disputed amount and therefore is not relevant to Plaintiff s claim. 15. Denied. Defendant has fully cooperated with plaintiff at all relevant times including reconciliation process after plaintiff purchased the book of during the transition and business from Sedgwick. Byway of further answer, Plssintiff's initially demanded that Defendant make a payment of $147,813.92 immediately, or all of Defendant's policies would be cancelled. Such demand was wholly unreasonable and baseless. Despite requesting information from plaintiff, Defendant received nothing in writing delineating this alleged outstanding balance. Rather, Plaintiff left it up to Defendant to straighten out the outstanding balance issue. Defendant attempted to do so by reconciling his accounts and contacting Sedgwick, to which it had made a payment for a premium that had been purchased by Plaintiff. Plaintiff has not cooperated by doing its part in ensuring that the amount Defendant owes is correct. 16. Denied. It is denied that Plaintiff has performed any and all conditions precedent to the bringing of this action and strict proof is demanded at trial. By way of further answer, plaintiff failed to properly bill Defendant after Plaintiff purchased the book of business from Marsh USA, Inc. f/k/a Sedgwick of PA, Inc. Any demands for payment from Plaintiff to Defendant were not supported with proper accounting nor proof. 4 17. Denied for the reasons cited in paragraphs 15 and 16 above. COI BREACH OF CONTRACT 18. Defendant incorporates herein by reference its answers to paragraphs 1 through 17 above, inclusive, as if set forth in full. 19. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 19 of the Compi?aint, and accordingly such allegations are deemed denied. 20. Denied. The averments of paragraph 20 of the Complaint are legal conclusions to which no responsive pleading is required. 21. Denied. By way of further answer, the averments of paragraph 21 of the Complaint are legal conclusions to which no responsive pleading is required. WHEREFORE, Defendant Hibberd Brothers, Inc. respectfully requests that this Court the plaintiff, dismissing Count One of Plaintiff s enter judgment in it favor and against Complaint with prejudice and awarding Hibberd Brothers, Inc. its costs of suit, attorneys' fees, and any other and further relief that the Court deems just and proper. COUNT 11 pUAN=MERUIT 22. Defendant incorporates herein by reference its answers to paragraphs 1 through 21 above, inclusive, as if set forth in full. it upon . It is admitted that plaintiff conferred a benefi 23. Admitted in part, denied in part Defendant. It is specifically denied that the benefit conferred was in the amount of $26,448.23. 24. Denied. It is specifically denied that Defendant misled plaintiff. T the contrary, of further answer, Defendant had every intention of paying the premiums ow ed. By way Plaintiff has not provided any proof of the amount it alleges Defendant owes. 25. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 25 of the Complaint, and accordingly such allegations are deemed denied. By way of further answer, Defendant believes and therefore avers that plaintiff does not have the correct dollar figures for the total premium dollars. enied that Plaintiff failed to make the required premium payments. The . Denied. It is d 26 remainder of the averments of paragraph 26 of the Complaint are legal conclusions to which no responsive pleading is required. 27. Denied. It is specifically denied that the reasonable and fair value of the services rendered by Plaintiff is $26,448.23. To the contrary, plaintiff has not provided sufficient information to Defendant to show that the amount of $26,448.23 is the fair and reasonable value of the services provided to Defendant by plaintiff. The remainder of the averments of paragraph 27 of the Complaint are legal conclusions to which no responsive pleading is required. . Denied. By way of further answer, plaintiff failed to properly bill Defendant after 28 Plaintiff purchased the book of business from Marsh USA, Inc. Ma Sedgwick of PA, Inc. Moreover, any demands for payment from Plaintiff to Defendant were not supported with proper accounting nor proof. 6 WHEREFORE, Defendant Hibberd Brothers, Inc. respectfully requests that this Court enter judgment in it favor and against the Plaintiff, dismissing Count Two of Plaintiff's Complaint with prejudice and awarding Hibberd Brothers, Inc. its costs of suit, attorneys' fees, and any other and further relief that the Court deems just and proper. COUNT UNJUST ENRICHMENT 29. Defendant incorporates herein by reference its answers to paragraphs 1 through 28 above, inclusive, as if set forth in full. 30. Denied. The averments of paragraph 30 of the Complaint are legal conclusions to which no responsive pleading is required. 31. Denied. The averments of paragraph 31 of the Complaint are legal conclusions to which no responsive pleading is required. 32, Denied. The averments of paragraph 32 of the Compl.ain? are legal conclusions to which no responsive pleading is required. By way of further answer, it is specifically denied that Defendant was unjustly enriched in the amount of $26,448.23. To the contrary, plaintiff has not provided sufficient information to Defendant to show that the amount of $26,448.23 is the fair and reasonable value of the services provided to Defendant by Plaintiff. WHEREFORE, Defendant Hibberd Brothers, Inc. respectfully requests that this Court enter judgment in it favor and against the plaintiff, dismissing Count Three of Plaintiff's Complaint with prejudice and awarding Hibberd Brothers, Inc. its costs of suit, attorneys' fees, and any other and further relief that the Court deems just and proper. NEWS ATE 33. Defendant incorporates herein by reference its answers to paragraphs 1 through 32 above, inclusive, as if set forth in full. Defendant failed to pay 34. Plaintiff's complaint seeks damages from Defendant, alleging insurance premiums due and owing in the amount of $26,448.23. 42 Pa.Cons.Stat.Ann. § 5525, requires 35. The applicable Pennsylvania statute of limitation, of the date on which that suit on such a cause of action be commenced within four years the cause of action accrued. 36. Plaintiff s cause of action accrued in May 1999, which is the date when the book o of insurance, including the policies at issue, owned by Marsh USA, Inc. f/k/a Sedges ck PA Inc., were purchased by Plaintiff. 37. Plaintiff s action was not commenced until June 18, 2003, which is beyond the applicable statutory period of limitation. 38. Plaintiff s action is accordingly barred by the applicable statute of limitation. 39. Plaintiff s Complaint fails to state a claim upon which relief may be granted. 40. Defendant received no invoices from plaintiff until in or around January 2001, subsequent to the purchase of the book of business by Plaintiff from Marsh USA, Inc. flk/a Sedgwick of PA, Inc., Plaintiff demanded that Defendant make a payment of $147,813.92 immediately, or all of Defendant's policies would be cancelled. Defendant received nothing in writing 41. Despite requesting information from Plaintiff, delineating this alleged outstanding balance. Rather, Plaintiff left it up to Defendant to straighten out the outstanding balance issue. 42. Defendant attempted to reconcile the balance by reconciling his accounts and contacting Marsh USA, Inc. f/k/a Sedgwick of PA, Inc., to which Defendant had made payments for premiums on policies that had been placed on behalf of Defendant's clients. 43. It was determined that the amount in dispute of $61,953.03 was significantly less than what plaintiff had demanded. 44. Defendant Paid plaintiff $31,953.03 on March 8, 2001 to pay the balance of two outstanding invoices. 45. The remaining sum of $26,448.23 remained in dispute as Defendant claimed that it had made payments to Marsh USA, Inc. flk/a Sedgwick of PA, Inc. which it believed it had not been properly credited for. Defendant requested that Plaintiff pursue collection of the amount with Marsh USA, Inc. fk/a Sedgwick of PA, Inc. 46. Plaintiff later informed Defendant that it had not been able to reconcile its accounts with Marsh USA, Inc. flk/a Sedgwick of PA, Inc., and that it still considered Defendant responsible for the outstanding balance. 47. Plaintiff has not cooperated by doing its part in ensuring that the amount it alleges Defendant owes is correct. 48. Plaintiff s failure to cooperate by doing its part in ensuring that the amount it alleges Defendant owes is correct constitutes non-performance of the contract which bars Plaintiff s claims. 49. Plaintiff's failure to properly invoice Defendant was a surrender of Plaintiff's rights and Plaintiff's claim is barred by the defense of waiver. 50. Plaintiff s failure to provide the services required bars Plaintiff's action by the defense of estoppel. WHEREFORE, Defendant Hibberd Brothers, Inc. respectfully requests that this Court enter judgment in it favor and against the Plaintiff, dismissing Plaintiff s Complaint with prejudice and awarding Hibberd Brothers, Inc. its costs of suit, attorneys, fees, and any other and further relief that the Court deems just and proper. DAL GORBEY & OTRIEN, P.C. /D r BY: Deborah A. Knell, Esquire Attorney for Defendant 10 CERTIFICATE OF SERVICE I certify that the attached Defendant Hibberd Brothers Inc-'s Answer to Complaint and New Matter was sent by regular mail, unless otherwise indicated, to each of the following on September 2, 2004. E. Ralph Godfrey, Esquire Godfrey & Courtney, P.C. 50 East High Street Suite 201 Carlisle, PA 17013 1 DEBORAH A. IaULL Attorney for Defendant ® 011/011 _ $610 892 9637 HIBBERD BROTHERS ?- PAGE 11 09?O1?Oq 11:43 6105665160 WOODY & FALKENBACH , 00/30/2004 14:59 yFR FCATION 1, Stanley T. Hibberd, 111, verify that the facts set forth in pleading are true and correct, to the best of his knowledge, information an belles. False statements made herein are subject to the penalties of S Pa. C. S, §4904 relating to unworn falsification to authorities. y ? LPL ANLBY T. HIBBEILD, III C q ,I C- Date: n N to a .T. DALY, GORBEY & O'BRIEN, P.C. BY: DEBORAH A. KRULL, ESQUIRE ATTORNEY I.D. NO. 69948 110 WEST FRONT STREET P.O. BOX 199 MEDIA, PA 19063 610-565-7520 AMERICAN FINANCIAL SERVICES OF PENNSYLVANIA, INC. n/k/a AMERICAN PROGRAM UNDERWRITERS, INC. Plaintiffs Vs. HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE Defendant Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 03-2845 DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS Defendant, Hibberd Brothers, Inc. by its undersigned counsel, moves this Court pursuant to Pa.R.C.P. No. 1034 for judgment on the pleadings as follows: Plaintiff American Financial Services of Pennsylvania, Inc. n/k/a American Program Underwriters, Inc. (hereinafter "Plaintiff") filed its complaint against Defendant on August 4, 2004. A true and correct copy of Plaintiff s complaint is attached hereto as Exhibit "A". 2. On September 3, 2004, Defendant filed its Answer and New Matter to Plaintiff s Complaint denying the material allegations of Plaintiff's claim and asserting as new matter the affirmative defenses of statutes of limitations, failure to state a claim upon which relief can be granted, non-performance of contract, waiver, and estoppel. The Answer and New Matter was endorsed with an appropriate notice to plead. A copy of Defendant' answer and new matter is attached as Exhibit "B". 3. On September 2, 2004 counsel for Defendant served Defendant's answer with New Matter on Plaintiff s counsel by regular mail in accordance with Pa.R.C.P. No. 440. A copy of the Certificate of Service is attached hereto as Exhibit "C". 4. Plaintiff was required to plead to Defendant's New Matter within twenty days after service. On or about December 20, 2004, Counsel for Plaintiff informed Counsel for Defendant via telephone that he would be responding to Defendant's New Matter. However, he never sought an extension of time in which to respond to Defendant's New Matter, nor was one granted by Defendant. Defendant has not been served with any pleading to Defendant's New Matter as of the date of this filing, and the docket entries do not reflect that any pleading to Defendant's New Mater has been filed. 6. The time for Plaintiff to plead has expired and the pleadings in this matter are closed. This case has not been listed for trial. By failing to plead to Defendant's New Matter, Plaintiff must be deemed to have admitted Defendant's allegations in the New Matter, the material aspects of which are as follows: A. Plaintiff s claim against Defendant is barred by the four-year statute of limitations under 42 Pa. C.S.A. § 5525 as Plaintiff's cause of action accrued in May 1999, which is the date when the book of insurance including the policies at issue were purchased by Defendant; B. Plaintiffs cause of action accrued in May 1999, which is the date when the book of insurance, including the policies at issue, owned by Marsh USA, Inc. f/k/a Sedgwick of PA, Inc., were purchased by Defendant; C. Plaintiffs action was not commenced until June 18, 2003, which is beyond the applicable statutory period of limitation; D. Plaintiff s action is accordingly barred by the applicable statute of limitation. E. Defendant received no invoices from Plaintiff until in or around January 2001, subsequent to the purchase of the book of business by Plaintiff from Marsh USA, Inc. f/k/a Sedgwick of PA, Inc., Plaintiff demanded that Defendant make a payment of $147,813.92 immediately, or all of Defendant's policies would be cancelled; F. Despite requesting information from Plaintiff, Defendant received nothing in writing delineating this alleged outstanding balance. Rather, Plaintiff left it up to Defendant to straighten out the outstanding balance issue; G. Defendant attempted to reconcile the balance by reconciling his accounts and contacting Marsh USA, Inc. f/k/a Sedgwick of PA, Inc., to which Defendant had made payments for premiums on policies that had been placed on behalf of Defendant's clients; H. It was determined that the amount in dispute of $61,953.03 was significantly less than what Plaintiff had demanded; I. Defendant paid Plaintiff $31,953.03 on March 8, 2001 to pay the balance of two outstanding invoices; The remaining sum of $26,448.23 remained in dispute as Defendant claimed that it had made payments to Marsh USA, Inc. f/k/a Sedgwick of PA, Inc. which it believed it had not been properly credited for. Defendant requested that Plaintiff pursue collection of the amount with Marsh USA, Inc. f/k/a Sedgwick of PA, Inc.; K. Plaintiff later informed Defendant that it had not been able to reconcile its accounts with Marsh USA, Inc. f/k/a Sedgwick of PA, Inc., and that it still considered Defendant responsible for the outstanding balance; L. Plaintiff has not cooperated by doing its part in ensuring that the amount it alleges Defendant owes is correct; M. Plaintiff's failure to cooperate by doing its part in ensuring that the amount it alleges Defendant owes is correct constitutes non-performance of the contract which bars Plaintiff's claims; N. Plaintiff's failure to properly invoice Defendant was a surrender of Plaintiff's rights and Plaintiff's claim is barred by the defense of waiver; 0. Plaintiff's failure to provide the services required bars Plaintiff's action by the defense of estoppel. 9. Based upon these admitted facts, Defendant is entitled to judgment as a matter of law. WHEREFORE, Defendant Hibberd Brothers, Inc. respectfully request that Defendant's New Matter be deemed admitted, and that judgment be entered on the pleadings in favor of Defendant and against Plaintiff in its Complaint. DALY, GORBEY & OTRIEN, P.C. Our? Deborah A. Krull, Esquire Attorney for Defendant DALY, GORBEY & O'BRIEN, P.C. BY: DEBORAH A. KRULL, ESQUIRE ATTORNEY I.D. NO. 69948 110 WEST FRONT STREET P.O. BOX 199 MEDIA, PA 19063 610-565-7520 AMERICAN FINANCIAL SERVICES OF PENNSYLVANIA, INC. n/k/a AMERICAN PROGRAM UNDERWRITERS, INC. Plaintiffs VS. HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE Defendant Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 03-2845 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS Rule 1029(d) of the Pennsylvania Rules of Civil Procedure governs when a party must file a responsive pleading to an averment contained in a new matter or other pleading. Rule 1029(d) provides that averments in a pleading to which no responsive pleading is required shall be deemed to denied. If a party's new matter does not contain facts supporting an affirmative defense, bu rather contains merely conclusions of law, no denial is required because such averments are deemed to be denied. In evaluating whether an averment contained in a new matter requires a response, courts, must consider whether the averments are fact-based or are merely conclusions of law. Gotwalt v. Dellinger, 577 A.2d 623, (Pa.Super. 1990). When a Plaintiff fails to serve a response to a New matter, the Court may, upon Motion for Judgment on the Pleadings, may enter an appropriate Order dismissing Plaintiff's action. See e.g. Spain v. Vicente, 461, A.2d 8333 (Pa.Super. 1983) (new matter which contained statute of limitations defense and qualified privilege for allegedly defamatory statement that was not responded to by plaintiff, required a response and summary judgment was appropriate.) Defendant Hibberd Brothers, Inc., movant herein, seeks an Order dismissing Plaintiff s Complaint for failure to respond to Defendant's New Matter. Respectfully submitted, DALY, GORBEY & O'BRIEN, P.C. /f rt )d, BY: DEBORAH A. KRULL, ESQUIRE Attorney for Defendant VERIFICATION I, Deborah A. Krull, Esquire attorney for the Defendant named herein verify that the statements made in the within pleading are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities. DEBORAH A. KRULL, ESQUIRE DATE: CERTIFICATE OF SERVICE I certify that the attached Defendant Hibberd Brothers Inc.'s Motion for Judgment on the Pleadings and supporting Legal Memorandum was sent by regular mail, unless otherwise indicated, to each of the following on March 9, 2005. E. Ralph Godfrey, Esquire Godfrey & Courtney, P.C. 50 East High Street Suite 201 Carlisle, PA 17013 DEBORAH A. KRULL Attorney for Defendant ?::? _, `::., ?> AMERICANA FINANCIAL SERVICES OF PENNSYLVANIA, INC. n/k/a AMERICANA PROGRAM UNDERWRITERS, INC. Plaintiff V. HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2845 REPLY OF PLAINTIFF TO DEFENDANT'S NEW MATTER AND NOW, comes the Plaintiff by and through its attorneys, Godfrey & Associates P.C., and avers to Defendant's New Matter as follows: 33. Denied. Paragraph 33 is an incorporation paragraph to which no response is required. 34. Admitted but with qualifications. Plaintiff's Complaint is a written document, which speaks for itself and this paragraph is only admitted to the extent that it accurately reflects the facts contained in the Complaint. 35. Denied. Paragraph 35 is denied as a conclusion of law to which no response is required. Strict proof thereof is demanded at the time of trial. 36. Denied. The cause of action for the recovery of the third premium payment did not accrue for until July 1, 1999, the time the third premium became due and owing from the Defendants. Accordingly, Plaintiff s Complaint is not barred by the Statute of Limitations. 37. Denied. Plaintiffs commenced its action on June 18, 2003, which was prior to July 1, 2003 expiration of the four year statute of limitations. Specifically, Defendants third quarter payment on the installment schedule for the policy issued to the Township of Nether Province did not become due and owing until July 1, 1999. The remaining policy for the Borough of Media did not begin until the year 2000. The cause of action for these delinquent payments is also within the statute of limitations period. Strict proof is demanded at the time of trial. 38. Denied. Paragraph 38 is denied as a conclusion of law to which no responsive pleading is required. Strict proof thereof is demanded at the time of trial. 39. Denied. Paragraph 39 is denied as a conclusion of law to which no responsive pleading is required. 40. Denied. Paragraph 40 is denied pursuant to Pa.R.C.P. 1029(e). Strict proof is demanded at the time of trial. 41. Denied. Paragraph 40 is denied pursuant to Pa.R.C.P. 1029(e). To the extent that a response may be required, Plaintiff provided Defendant with invoices as well as detailed accountings of the premiums that became due and owing to Plaintiffs. Strict proof is demanded at the time of trial. 42. Denied. It is strictly denied that Defendant attempted to reconcile the balance or its account because if this action had been undertaken, it would have been discovered that payment had not been made in a timely manner to Plaintiff. Strict proof is demanded at the time of trial. 43. Denied. Paragraph 43 is denied pursuant to Pa.R.C.P. 1029(e). Strict proof thereof is demanded at the time of trial. -2- 44. Denied. While Defendant did pay Plaintiff $31,953.03 on March 8, 2001, it left a remaining balance of $26,448.23, which to date has remained unpaid. 45. Admitted but with qualifications. It is admitted that the remaining balance of $26,448.23 remained in dispute. Furthermore, Plaintiff did conduct an investigation into the claimed payments with Marsh USA, Inc. fka Sedgwick of PA, Inc. and discovered that Defendant has only made the first and second installment payments. The remaining third installment has never been paid. Plaintiff also has repeatedly requested documentation showing that Defendant has paid the outstanding invoice; however, Defendant has failed to provide any such evidence. Strict proof is demanded at the time of trial. 46. Denied. Paragraph 46 is denied pursuant to Pa.R.C.P. 1029(e). Furthermore, Plaintiff had clarified this matter with Marsh USA, Inc. f/k/a Sedgwick of PA, Inc. and had determined that Defendant remained liable for the premiums. Strict proof is demanded at the time of trial. 47. Denied. Paragraph 47 is denied pursuant to Pa.R.C.P. 1029(e), To the extent that a response may be required, Plaintiff has fully cooperated in this matter. Strict proof is demanded at the time of trial 48. Denied. Paragraph 48 is denied as a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. 49. Denied. Paragraph 49 is denied as a conclusion of law to which no responsive pleading is required. 50. Denied. Paragraph 50 is denied as a conclusion of law to which no responsive pleading is required. 3- WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment against Defendant, together with interest, costs, and any other relief this Honorable Court deems just. GODFREY & ASSOCIATES, P.C. B E. Ralph Godfre , squire Attorney I.D. No. 77052 17 W. South Street Carlisle, PA 17013 (717) 243-5100 Attorneys for Plaintiff Dated: 3 -/7f -6S 4- r CERTIFICATE OF SERVICE AND NOW, this 14th day of March, 2005, I, E. Ralph Godfrey, Esquire, of Godfrey & Associates, P.C., attorneys for Plaintiff, hereby certify that I served a copy of the within Reply of Plaintiff to Defendant's New Matter this day by depositing the same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed to: Deborah A. Krull, Esquire Daly, Gorbey & O'Brien, P.C. 110 West Front Street PO Box 199 Media, PA 19063 E. Ralph Godfrey Document #210655 DALY, GORBEY & O'BRIEN, P.C. BY: DEBORAH A. KRULL, ESQUIRE ATTORNEY I.D. NO. 69948 110 WEST FRONT STREET P.O. BOX 199 MEDIA, PA 19063 610-565-7520 AMERICAN FINANCIAL SERVICES OF PENNSYLVANIA, INC. n/k/a AMERICAN PROGRAM UNDERWRITERS, INC. Plaintiffs VS. HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE Defendant Attorney for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 03-2845 PRAECIPE TO ATTACH EXHIBITS TO THE OFFICE OF JUDICIAL SUPPORT: Please attach the attached exhibits to Defendant's Motion for Judgment on the Pleadings and Legal Memorandum in support thereof which was filed with the Court on or about March 10, 2005. Date: Jl(I o Attorney for Detendant CERTIFICATE OF SERVICE I certify that the attached Defendant Hibberd Brothers Inc.'s Praecipe to Attach Exhibits to its Motion for Judgment on the Pleadings and supporting Legal Memorandum was sent by regular mail, unless otherwise indicated, to each of the following on March 11, 2005. E. Ralph Godfrey, Esquire Godfrey & Courtney, P.C. 50 East High Street Suite 201 Carlisle, PA 17013 ) o " r c,z / w DEBORAH A. KRULL Attorney for Defendant ,?????? ?? - 08/11/04 13:47 $610 892 9637 HIBBERD BROTIIERS 10002/021 GODFREY & COURTNEY, P.C. BY: E. Ralph Godfrey, Esquire Attorney LD. No. 77052 17 W. South Street Carlisle, PA 17013 AMERICANA FINANCIAL SERVICES OF PENNSYLVANIA, INC. nWa AMERICANA PROGRAM UNDERWRITERS, INC. Plaintiff V. HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE, and HIBBERD BROTHERS INSURANCE, in its own right, Defendants Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 03-2945 To: Htbberd Brothers, Inc. d/b/a Hibberd Brothers Insurance '.? Hibberd Brothers Insurance, in its own right 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 the Complaint and notice are served, by entering a written appearance ersonally or by attorney and tiling in writing with the court your defenses or objections to the claims set forth gainst 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. 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 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CAN NOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE - CARLISLE, PA 1700 (717) 249-3166 RECORD Effective September 1, 2003 Complaint TRUE COPY FROM In Testimony vine-reot, i here unto Set my hand and the seal of said. COuft at"??" 11s?le. PA. - This?.day sta. iPromonotiov 08/11/04 13:48 $610 892 9637 HIBBERD BROTHERS Z003/021 EN LA CORTE DE ALEGATOS COM $N DEL CONDADO DE Cumberland, PENNSYLVANIA DIVISIt5N CIVIL AV I S 0 PARA DEFENDER Conforme a PA Num. 1018.1 LISTED HA SIDO DEMANDOIA EN LA CORTE. Si usted desca defender conta la demanda puestas en las siguientes piginas, usted tienen que tornar accidn dentro veinte (20) dias despues que esta Demanda y Aviso es servido, con entrando par escrito una aparencia personalmente o par un abogado y archivando par escrito con la Corte sus defenses o objeciones a ]as demandas puestas en contra usted. Usted es advertido que si falls de hacerlo el caso puede proceder sin usted y on jazgamiento puede ser entrado contra usted par la Corte sin mss aviso par cualquier dinero reclamado en la Demanda o par cualquier ono reclamo o alivio solicitado par Demandante. Ustedpuede perder dinero o propiedad o otms derechos importante para usted. - USTED DEBE LLEVAR ESTE PAPEL A SU ABOGADO ENSEGUIDA. SI LISTED NO TIENE UN ABOGADO, VAYA O LLAME FOR TELEFONO LA OFICINA FIJADA AQUI ABAJO. ESTA OFICINA PUEDE PROVEERE CON INFORMACION DE COMO CONSEGUBR UN ABOGADO. SI USTED NO PUEDE PAGARLE A UN ABOGADO, ESTA OFICINA PUEDE PROVEERE INFORMACION ACERCA AGENCIAS QUE PUEDAN OFRECER SERVICIOS LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO 0 GRATIS. l CUMBERLAND COUNTY BAR ASSOC IATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Efectivo 1 de septiembre, 2003 Queja 08/11/04 13:48 $610 892 9637 HIBBERD BROTHERS (?004/021 AMERICANA FINANCIAL SERVICES OF PENNSYLVANIA, INC. n/k/a AMERICANA PROGRAM UNDERWRITERS, INC. V. Plaintiff HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE, and HIBBERD BROTHERS INSURANCE, in its own right, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2845 COMPLAINT AND NOW, comes the Plaintiff, Americana Financial Services of Pennsylvania, Inc. n/k/a Americana Program Underwriters, Inc., by and through its attorneys, E. Ralph Godfrey, Esquire and Godfrey & Courtney, P.C., and avers as follows: Plaintiff, Americana Financial Services, Inc. n/k/a Americana Program Underwriters, Inc., ("Plaintiff') is a Pennsylvania Corporation with a principal place of business 0 located at 355 North 21" Street, Camp Hill; Cumberland County, Pennsylvania 17011. 2. Defendant, Hibberd Brothers, Inc. d/b/a Hibberd Brothers Insurance, is a Pennsylvania Corporation ("Defendant") with a principal place of business located at 210 W. State Street, Media, PA 19063 and at all times relevant hereto was a broker and/or agent for the placement of insurance. 3. Defendant, Hibberd Brothers Insurance, in its own right, ("Defendant") is a Pennsylvania entity with a principal place of business located at 210 W. State Street, Media, PA 19063 and at all times relevant hereto was a broker and/or agent for the placement of insurance. .08/11/04 13:48 0610 892 9637 HIBBERD BROTHERS 0005/021 4. On or about January 1, 1999, Defendants placed a policy of insurance for the Township of Nether Providence with Marsh USA, Inc. f/k/a Sedwick of PA, Inc. Said policy had a group number of GP09000390. Said insurance was placed with St. Paul Mercury Insurance Company. 5. The policy required four quarterly premium payments from Defendants to Marsh USA, Inc. f/k/a Sedwick of PA, Inc, in equal amounts of Sixteen Thousand Five hundred Eighty Six and 00/100 dollars ($16,586.00). The premium payments were due on January 1, 1999, April 1, 1999, July 1, 1999 and October 1, 1999. 6. The Defendants were entitled to a commission of One Thousand Six hundred Fifty Eight and 69/100 dollars ($1,658.69) per payment reducing the quarterly premium payment to Fourteen Thousand nine hundred Twenty Seven and 31/100 dollars ($14,927.31). On or about May, 1999, the book of insurance, including the policy issued to the 3 Township of Nether Providence, owned by Marsh USA, Inc. f/k/a Sedwick of PA, Inc. was purchased by Plaintiff. # 8. As a result of this purchase, all remaining premiums became due and owing to Plaintiff. The remaining premium balance at the time of the purchase was Thirty Three Thousand One Hundred Seventy Two and 00/100 Dollars ($33,172.00). 9. Defendant was notified of the purchase and the requirement that all future payments were to be made to Plaintiff. 10. On July 1, 1999 an invoice was sent by Plaintiff to Defendant notifying Defendant that a premium payment in the amount of Fourteen Thousand Nine hundred Twenty Seven and 40/100 dollars ($14,927.40) was due. 08/11/04 13:49 $610 892 9637 HIBBERD BROTHERS /006/021 11. On October 1, 1999 a 2"d invoice was sent by Plaintiff to Defendant notifying Defendant that a 2nd premium payment in the amount of Sixteen Thousand Five hundred Eighty Six and 00/100 dollars ($16,586.00) was due. 12. Defendants have never made the payment required by the July 1, 1999 invoice. 13. On or about January 1, 2000, Defendants placed a policy of insurance for workers compensation for the Borough of Media with Plaintiff. The premium for this policy was Six Hundred Eighty One and 00/100 dollars ($681.00). After a reduction of the premium by the Defendants' commission, the amount of Four Hundred Twenty and 08/100 dollars ($420.08) became due and owing to Plaintiff. 14. On or about February 1, 2000, Defendants placed a2"d policy of workers compensation insurance for the Borough of Media with Plaintiff. The premium for the policy was Eleven Thousand Six hundred Eighty Five and 00/100 dollars ($11,685.00). After a reduction of the premium by Defendants' commission, the amount of Eleven Thousand One hundred and 75/100 dollars ($11,100.75) became due and owing to Plaintiff. 15. Despite Plaintiff's reasonable and repeated demands for payment, Defendants have failed, refused and continues to refuse to pay all premiums due and owing as a result of the insurance policies placed with Plaintiff. 16. Plaintiff has performed any and all conditions precedent to the bringing of this action. 17. As a result of Defendants failure to pay the required premiums, Plaintiff has been damaged in the amount of Twenty Six Thousand Four hundred Forty Eight and 23/100 dollars ($26,448.23). 08/11/04 13:49 $610 892 9637 RIBBERD BROTHERS Z007/021 COUNTI BREACH OF CONTRACT 18. The averments of paragraphs 1 through 17 are hereby incorporated by reference. 19. Plaintiff, relying upon the representations and assurances made by Defendants, Plaintiff accepted business and placed insurance on behalf of Defendants. 20. Defendants breached the oral contract by failing to pay the premiums as required by the placement of insurance with Plaintiff. 21. Because of Defendants' breach of the oral agreement, Plaintiff has been damaged in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars, plus costs, attorney fees and interest. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendants in the amount of Twenty Six Thousand Four Hundred Forty Eight and 231100 ($26,448.23) Dollars, plus interest, reasonable attorney's fees, the costs of this action, and such other relief as the Court deems just and proper. C U TII QUANTUM MERUIT :a 22. Paragraphs 1 through 21 are incorporated herein by reference as if set forth in their entirety. 23. Plaintiff conferred a benefit in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars, upon Defendants in return for Defendants' promise to pay the premiums. 24. Defendants misled Plaintiff with their assurances and representations that they would pay the premiums for the insurance placed on their behalf. 08/11/04 13:49 $610 892 9637 HIBBERD BROTHERS 10008/021 25. Relying upon the representations and assurances of Defendants, Plaintiff placed insurance for a total of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars. 26. Defendants accepted and retained the benefits provided by Plaintiff, but failed to make the required premium payments and, as a result, Defendants have been unjustly enriched in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars. 27. The aforesaid amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars is the fair and reasonable value of the services/monies provided to Defendants by Plaintiff. 28. Despite Plaintiff's reasonable and repeated demands for payment, Defendants have failed, refused and continues to refuse to pay the fair and reasonable value of the services/monies rendered to Defendants plus any accrued interest, costs, expenses, and attorney c fees, all to the damage of Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in Ivor of Plaintiff and against Defendants in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars, plus interest, reasonable attorney's fees, the costs of this action, and such other relief as the Court deems just and proper. COUNT III UNJUST ENRICHMENT 29. Paragraphs 1 through 28 are incorporated herein by reference as if set forth in their entirety. 30. Defendants would be unjustly enriched if it were permitted to benefit from the services/monies provided by Plaintiff without paying the monies owed to Plaintiff. 08/11/04 13:50 $610 892 9637 HIBBERD BROTHERS 16009/021 31 The aforesaid services/mollies provided by Plaintiff and accepted by Defendants have enriched Defendants in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars, 32. Said enrichment would be unjust if Defendants were not required to pay the monies owed to Plaintiff, and said Defendants accordingly is obligated to Plaintiff for said amount. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendants in the amount of Twenty Six Thousand Four Hundred Forty Eight and 23/100 ($26,448.23) Dollars, plus interest, reasonable attorney's fees, the costs of this action, and such other relief as the Court deems just and proper. GODFREY & COURTNEY, P.C. By k J? '--' alplfGodfrey, Esqu?W Attorney LD, No. 77052 17 W. South Street Carlisle, PA 17013 (717) 243-5100 . Attorneys for Plaintiff Dated: U? _._08/11/09 13:50 $610 892 9637 HIBBERD BROTHERS fA010/021 VERIFICATION I, Robert S. Noggle, CPA, Chief Financial Officer of Americana Financial Services of Pennsylvania, Inc. n/k/a Americana Program Underwriters, Inc., hereby certify that the facts set forth in the foregoing Complaint arc based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Complaint is that of counsel and not my own. I have read the Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Complaint is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Civil Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Ri Z'?- e?5?0? - Robert S. Noggle, C Date: 712 7t-"e e/ 08/11/04 13:50 $610 892 9637 IIIBBERD BROTHERS 0011/021 CERTIFICATE OF SERVICE ? day of August, 2004, I, E. Ralph Godfrey, Esquire, do ANA NOW, this 3?n hereby certify that I, this day, served a copy of the Plaintiff s Complaint by Regular Mail to the following parties: Hibberd Brothers, Inc. d/b/a Hibberd Brothers Insurance Hibberd Brothers Insurance, in its own right 210 West State Street Media, PA 19063 GODFREY & COURTNEY, P.C. By E. Ralph Godfrey, 0 4 x1?,?,? You are hereby notified to plead to the enclosed Pleading within twenty (20) days from service hereon or a default judgment may be entered against you. DALY, GORBEY & O'BRIEN, P.C. BY: DEBORAH A. KRULL, ESQUIRE ATTORNEY I.D. NO. 69948 110 WEST FRONT STREET P.O. BOX 199 MEDIA, PA 19063 610-565-7520 EN, P.C. IIALY, GORBEY7??X?- ?7 J-_ 2 Attorney For lanitiff/Defendant Attorney for Defendant AMERICAN FINANCIAL SERVICES OF PENNSYLVANIA, INC. n/k/a AMERICAN PROGRAM UNDERWRITERS, INC. Plaintiffs VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW HIBBERD BROTHERS, INC. d/b/a NO. 03-2845 ? o HIBBERD BROTHERS INSURANCE Defendant ANSWER AND NEW MATTER => J ; iz 1. Admitted upon information and belief. 2. Denied as stated. It is admitted only that Hibberd Brothers, Inc, is a Pennsylvania with a principal place of business located at 210 W. State Street, Media, PA 19063 and that Hibberd Brothers, Inc. is a broker and/or agent for the placement of insurance. All other allegations, whether express or implied, are specifically denied. By way of further answer, the proper corporate entity is Hibberd Brothers, Inc., which is the only proper Defendant. 3. Denied as stated for the reasons cited in paragraph 2 herein. 4. Admitted. 1 5. Admitted in part and denied in part. It is admitted only that the policy required four quarterly premium payments from Defendant to Marsh USA, Inc. ffkla Sedgwik of PA, Inc. Except as expressly admitted herein, the remaining averments of Paragraph 5 of the Complaint are denied and strict proof is demanded at trial. 6. Admitted in part and denied in part. It is admitted only that Defendant was entitled to a commission of a certain percentage. Except as expressly admitted herein, the averments of Paragraph 6 of the Complaint are denied and strict proof is demanded at trial. 7. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 7 of the Complaint, and accordingly such allegations are deemed denied. 8. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 8 of the Complaint, and accordingly such allegations are deemed denied. 9. Admitted in part and denied in part. It is admitted that at some point in time, Defendant was notified of the purchase of Marsh USA, Inc. fWa Sedgwick of PA, Inc. Expect as expressly admitted herein, the averments of Paragraph 9 of the Complaint are denied and strict proof is demanded at trial. 10. Denied. Defendant has no recollection of receiving said invoice from Plaintiff and accordingly the averments of Paragraph 10 of the Complaint are denied and strict proof is demanded at trial. By way of further answer, Plaintiff received an invoice number 499850 dated July 31, 1999 from Sedgwick in the amount of $14,787.90 which invoice was paid by Defendant to Sedgwick on September 20, 1999. 2 11. Denied. Defendant has no recollection of receiving said invoice and accordingly the averments of Paragraph 11 of the Complaint are denied and strict proof is demanded at trial. By way of further answer, the dollar number cited by Plaintiff does not correspond with the amount Plaintiff alleged was due in paragraph 6 herein as a quarterly payment. 12. Denied. By way of further answer, Defendant remitted $26,448.23 to Sedgwick during the transition period when Americana was purchasing Sedgwick for the Borough of Media and Township of Nether Providence policies. Defendant believes and therefore avers that Defendant was not properly credited for this payment by Plaintiff. 13. Admitted in part and denied in part. It is admitted that Defendant placed a policy of insurance for workers compensation for the Borough of Media with Plaintiff. It is denied that the premium for this policy was Six Hundred Eighty One and 00/100 dollars ($681.00). It is denied that after a reduction of the premium by the Defendant's commission, the amount of Four Hundred Twenty and 08/100 dollars ($420.08) became due and owing to Plaintiff. Defendant believes and therefore avers that Plaintiff does not have the correct dollar figures for the Borough of Media policy. By way of further answer, Defendant believes and therefore avers that the Borough of Media policy and premium amount has no bearing to the disputed amount and therefore is not relevant to Plaintiff's claim. 14. Admitted in part and denied in part. It is admitted that Defendant placed a policy of insurance for workers compensation for the Borough of Media with Plaintiff. It is denied that the premium for this policy was Eleven Thousand Six hundred Eighty Five and 00/100 dollars ($11,685.00). It is further denied that after a reduction of the premium by the Defendant's commission, the amount of Four Hundred Twenty and 08/100 dollars ($420.08) became due and owing to Plaintiff. Defendant believes and therefore avers that Plaintiff does not have the correct dollar figures for the Borough of Media policy, By way of further answer, Defendant believes and therefore avers that the Borough of Media policy and premium amount has no bearing to the disputed amount and therefore is not relevant to Plaintiffs claim. 15. Denied. Defendant has fully cooperated with Plaintiff at all relevant times including during the transition and reconciliation process after Plaintiff purchased the book of business from Sedgwick. By way of further answer, Plaintiffs initially demanded that Defendant make a payment of $147,813.92 immediately, or all of Defendant's policies would be cancelled. Such demand was wholly unreasonable and baseless. Despite requesting information from Plaintiff, Defendant received nothing in writing delineating this alleged outstanding balance. Rather, Plaintiff left it up to Defendant to straighten out the outstanding balance issue. Defendant attempted to do so by reconciling his accounts and contacting Sedgwick, to which it had made a payment for a premium that had been purchased by Plaintiff. Plaintiff has not cooperated by doing its part in ensuring that the amount Defendant owes is correct. 16. Denied. It is denied that Plaintiff has performed any and all conditions precedent to the bringing of this action and strict proof is demanded at trial. By way of further answer, Plaintiff failed to properly bill Defendant after Plaintiff purchased the book of business from Marsh USA, Inc. f/k/a Sedgwick of PA, Inc. Any demands for payment from Plaintiff to Defendant were not supported with proper accounting nor proof. 4 17. Denied for the reasons cited in paragraphs 15 and 16 above. COUNTI BREACH OF CONTRACT 18. Defendant incorporates herein by reference its answers to paragraphs 1 through 17 above, inclusive, as if set forth in full. 19. Denied. Defendant is without knowledge or information sufficient to forma belief as to the truth of the allegations of Paragraph 19 of the Complaint, and accordingly such allegations are deemed denied. 20. Denied. The averments of paragraph 20 of the Complaint are legal conclusions to which no responsive pleading is required. 21. Denied. By way of further answer, the averments of paragraph 21 of the Complaint are legal conclusions to which no responsive pleading is required. WHEREFORE, Defendant Hibberd Brothers, Inc. respectfully requests that this Court enter judgment in it favor and against the Plaintiff, dismissing Count One of Plaintiff's Complaint with prejudice and awarding Hibberd Brothers, Inc. its costs of suit, attorneys' fees, and any other and further relief that the Court deems just and proper. COUNT II QUANTUM MERUIT 22. Defendant incorporates herein by reference its answers to paragraphs 1 through 21 above, inclusive, as if set forth in full. 23. Admitted in part, denied in part. It is admitted that Plaintiff conferred a benefit upon Defendant. It is specifically denied that the benefit conferred was in the amount of $26,448.23. 24. Denied. It is specifically denied that Defendant misled Plaintiff. To the contrary, Defendant had every intention of paying the premiums owed. By way of further answer, Plaintiff has not provided any proof of the amount it alleges Defendant owes. 25. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 25 of the Complaint, and accordingly such allegations are deemed denied. By way of further answer, Defendant believes and therefore avers that Plaintiff does not have the correct dollar figures for the total premium dollars. 26. Denied. It is denied that Plaintiff failed to make the required premium payments. The remainder of the averments of paragraph 26 of the Complaint are legal conclusions to which no responsive pleading is required. 27. Denied. It is specifically denied that the reasonable and fair value of the services rendered by Plaintiff is $26,448.23. To the contrary, Plaintiff has not provided sufficient information to Defendant to show that the amount of $26,448.23 is the fair and reasonable value of the services provided to Defendant by Plaintiff. The remainder of the averments of paragraph 27 of the Complaint are legal conclusions to which no responsive pleading is required. 28. Denied. By way of further answer, Plaintiff failed to properly bill Defendant after Plaintiff purchased the book of business from Marsh USA, Inc. f/k/a Sedgwick of PA, Inc. Moreover, any demands for payment from Plaintiff to Defendant were not supported with proper accounting nor proof. 6 WHEREFORE, Defendant Hibberd Brothers, Inc. respectfully requests that this Court enter judgment in it favor and against the Plaintiff, dismissing Count Two of Plaintiff's Complaint with prejudice and awarding Hibberd Brothers, Inc. its costs of suit, attorneys' fees, and any other and further relief that the Court deems just and proper. COUNT III UNJUST ENRICHMENT 29. Defendant incorporates herein by reference its answers to paragraphs 1 through 28 above, inclusive, as if set forth in full. 30. Denied. The averments of paragraph 30 of the Complaint are legal conclusions to which no responsive pleading is required. 31. Denied. The averments of paragraph 31 of the Complaint are legal conclusions to which no responsive pleading is required. 32. Denied. The averments of paragraph 32 of the Complaint are legal conclusions to which no responsive pleading is required. By way of further answer, it is specifically denied that Defendant was unjustly enriched in the amount of $26,448.23. To the contrary, Plaintiff has not provided sufficient information to Defendant to show that the amount of $26,448.23 is the fair and reasonable value of the services provided to Defendant by Plaintiff. WHEREFORE, Defendant Hibberd Brothers, Inc. respectfully requests that this Court enter judgment in it favor and against the Plaintiff, dismissing Count Three of Plaintiffs 7 Complaint with prejudice and awarding Hibberd Brothers, Inc. its costs of suit, attorneys' fees, and any other and further relief that the Court deems just and proper. NEW MATTER 33. Defendant incorporates herein by reference its answers to paragraphs 1 through 32 above, inclusive, as if set forth in full. 34. Plaintiff's complaint seeks damages from Defendant, alleging Defendant failed to pay insurance premiums due and owing in the amount of $26,448.23. 35. The applicable Pennsylvania statute of limitation, 42 Pa.ConS.Stat.Ann. § 5525, requires that suit on such a cause of action be commenced within four years of the date on which the cause of action accrued. 36. Plaintiff's cause of action accrued in May 1999, which is the date when the book of insurance, including the policies at issue, owned by Marsh USA, Inc. f/k/a Sedgwick of PA, Inc., were purchased by Plaintiff. 37. Plaintiff's action was not commenced until June 18, 2003, which is beyond the applicable statutory period of limitation. 38. Plaintiff's action is accordingly barred by the applicable statute of limitation. 39. Plaintiff's Complaint fails to state a claim upon which relief may be granted. 40. Defendant received no invoices from Plaintiff until in or around January 2001, subsequent to the purchase of the book of business by Plaintiff from Marsh USA, Inc. f/k/a Sedgwick of PA, Inc., Plaintiff demanded that Defendant make a payment of $147,813.92 immediately, or all of Defendant's policies would be cancelled. 41. Despite requesting information from Plaintiff, Defendant received nothing in writing delineating this alleged outstanding balance. Rather, Plaintiff left it up to Defendant to straighten out the outstanding balance issue. 42. Defendant attempted to reconcile the balance by reconciling his accounts and contacting Marsh USA, Inc. fkla Sedgwick of PA, Inc., to which Defendant had made payments for premiums on policies that had been placed on behalf of Defendant's clients. 43. It was determined that the amount in dispute of $61,953.03 was significantly less than what Plaintiff had demanded. 44. Defendant paid Plaintiff $31,953.03 on March 8, 2001 to pay the balance of two outstanding invoices. 45. The remaining sum of $26,448.23 remained in dispute as Defendant claimed that it had made payments to Marsh USA, Inc. f/k/a Sedgwick of PA, Inc. which it believed it had not been properly credited for. Defendant requested that Plaintiff pursue collection of the amount with Marsh USA, Inc. f/k/a Sedgwick of PA, Inc. 46. Plaintiff later informed Defendant that it had not been able to reconcile its accounts with Marsh USA, Inc. f/k/a Sedgwick of PA, Inc., and that it still considered Defendant responsible for the outstanding balance. 47. Plaintiff has not cooperated by doing its part in ensuring that the amount it alleges Defendant owes is correct. 48. Plaintiff's failure to cooperate by doing its part in ensuring that the amount it alleges Defendant owes is correct constitutes non-performance of the contract which bars Plaintiff's claims. 49. Plaintiff's failure to properly invoice Defendant was a surrender of Plaintiff s rights and Plaintiffs claim is barred by the defense of waiver. 50. Plaintiff s failure to provide the services required bars Plaintiff s action by the defense of estoppel. WHEREFORE, Defendant Hibberd Brothers, Inc. respectfully requests that this Court enter judgment in it favor and against the Plaintiff, dismissing Plaintiff s Complaint with prejudice and awarding Hibberd Brothers, Inc. its costs of suit, attorneys' fees, and any other and further relief that the Court deems just and proper. DAL GORBEY & O'BRIEN, P.C. BY: Deborah A. Krull, Esquire Attorney for Defendant 10 10 09/01/09 11:43 e610 892 9637 HIBBERD BROTHERS _ X011/011 00/30/2004 14;59 6105665160 WOODY & FALKENBACH _ PAGE 11 VERIFXCATION 1, Stanley T. Hibberd, III, verify that the facts set forth in th# foregoing pleading are true and correct, to the best of his knowledge, information False statements made herein are subject to the penalties oft S Pa. C. S. §4904 relating to unsworn falsification to authorities. T. HIBBERD, III Date: 9 I I Gt. ? ??`?? CERTIFICATE OF SERVICE I certify that the attached Defendant Hibberd Brothers Inc.'s Answer to Complaint and New Matter was sent by regular mail, unless otherwise indicated, to each of the following on September 2, 2004. E. Ralph Godfrey, Esquire Godfrey & Courtney, P.C. 50 East High Street Suite 201 Carlisle, PA 17013 a,j, zx, DEBORAH A. KRULL Attorney for Defendant AMERICANA FINANCIAL SERVICES OF PENNSYLVANIA, INC. n/k/a AMERICANA PROGRAM UNDERWRITERS, INC. Plaintiff V. HIBBERD BROTHERS, INC. Defendant IN THE COURT OF COMM CUMBERLAND COUNTY, CIVIL ACTION - LAW NO. 03-2845 PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, come Plaintiff by and through its attorneys, Godfrey & E. Ralph Godfrey, Esquire, and states the following in response to Defendant Judgment on the Pleadings: 1. Admitted. 2. Admitted in part; Denied in part. It is admitted that Defendant filed its Matter. It is denied that the pleading contained the appropriate notice to plead as it substantially conform to the Pennsylvania Rules of Civil Procedure since it lacks the "To: ." Furthermore, the alleged notice to plead is of minimal font and is a s in the upper right hand corner. Furthermore, this notice to plead does not comply wi custom that the Answer have a separate cover sheet containing the notice to plead. E affirmative defenses claimed in this paragraph, the Pennsylvania Rules of Civil Proc require a response to conclusions of law, which are deemed denied. PLEAS NNSYLVANIA P.C. and Motion for with New s to all stamp the for the ure do not 3. Admitted but with qualifications. It is only admitted that Plaintiff did receive he Answer and New Matter by regular mail. 4. Denied. The parties conferred by telephone about resolving this matter with?ut the need to incur further legal costs and the necessity for litigation. It was Plaintiff's understanding that the parties would exchange documents and review them in order to determine if this natter could be resolved without the need for litigation. Plaintiff further indicated in the conversation that it would withdraw its claim if Defendant would provide documentation supporting its position that the account hadlbeen paid in full. Plaintiff then indicated that if this matter could not be resolved after producing the documents, it would file it Reply shortly thereafter. It is of interesting note, that produced the required documentation, but Defendant instead unilaterally filed a Moti' n seeking to have the Court dismiss Plaintiffs case. Upon receiving Defendant's Motion on March 12, 2005, Plaintiff immediately filed its Reply on the next business day of March 14, 20g5. Since there has been no prejudice to Defendant, its Motion for Judgment on the Pleadings must be dismissed. 5. Denied. Plaintiff immediately filed and served its Reply on March 14, 2005. ?fhis was immediately upon receiving Defendant's Motion for Default Judgment. Furthermore as described in Paragraph 4, Plaintiff had the understanding that the Reply would not hate to be filed until after the documents were exchanged and this matter could not be amicably 6. Denied. As described in Paragraphs 4 and 5, Plaintiff believed that an extensign had been given to file the Reply until after documents had been exchanged. Plaintiff imm diately filed its Reply upon receiving Defendant's Motion. Lastly, Defendant's Motion must e denied because the Pennsylvania Rules of Civil Procedure do not require an answer to be file to conclusions of law. 7. Admitted. 8. Denied. Plaintiff believed that there was an understanding that documentation would be exchanged, and if the matter could not be resolved, a Reply would be filed. Immedi4tely upon receiving Defendant's Motion, Plaintiff filed its Reply. As a result, there is no prejudice to the Defendant. Lastly, the allegations contained in paragraphs A-O are conclusions of ldw. Since they are conclusions of law, the Pennsylvania Rules of Civil Procedure do not 9. Denied. Defendant is not entitled to judgment as a matter of law. Respectfully submitted, By p i Dated: ? Z- • 6 Ralph Godfrey, Esquire Attorney I.D. No. 77052 17 W. South Street Carlisle, PA 17013 (717) 243-5100 Attorneys for Plaintiff a response. CERTIFICATE OF SERVICE I, E. Ralph Godfrey, Esquire, of the law firm of Godfrey & Associates, P.C., certify that I served a true and correct copy of Plaintiff's Answer to Defendant's Motion for Judgment on the Pleadings by first class mail, postage prepaid, this 28th day of March, 2005, on the Deborah A. Krull, Esquire 110 West Front Street PO Box 199 Media, PA 19063 E. Ralph Godfrey (l ?? ? ?? VI -17 ?? y ?) r??_1? ? W f %? ?? ?? t; ?f 1 _r; ".7 ,n ? 4:• ?i ti AMERICANA FINANCIAL SERVICES : OF PENNSYLVANIA, INC. n/k/a AMERICANA PROGRAM UNDERWRITERS, INC. Plaintiff: V. HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE Defendant CIVIL ACTION - LAW NO. 03-2845 PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: E. Ralph Godfrey, Esquire, Counsel for the Plaintiff in the above action(s), respectfully represents that: 1. The above-captioned action(s) is at issue. 2. The claim of the plaintiff in the action is $ $26,448.23 The counterclaim of the defendant in the action is: N/A. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Deborah A. Krull, Esquire Daly, Gorbey & O'Brien, P.C. 110 West Front Street, PO Box 199 Media, PA 19063 THEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitted, Date: /O-/Z -y *? -- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SALZMANN HUGHES, P.C. ORDER OF COURT AND NOW, , 2007, in consideration of the foregoing petition, , Esq. and , Esq. are appointed arbitrators in the above captioned action(s) as prayed for. By the Court, P.J. CERTIFICATE OF SERVICE AND NOW, this 12th day of October, 2007, I, E. Ralph Godfrey, Esquire, of Salzmann Hughes, P.C., attorneys for Plaintiff, hereby certify that I served a copy of the Petition For Appoint of Arbitrators this day by depositing the same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed to: Deborah A. Krull, Esquire Daly, Gorbey & O'Brien, P.C. 110 West Front Street PO Box 199 Media, PA 19063 W l l n o r 11 v 3 q? n r?.a N r? 1..4.E O -n m f? ..I.J t 16 AMERICANA FINANCIAL SERVICES IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA, INC. n/k/a CUMBERLAND COUNTY, PENNSYLVANIA AMERICANA PROGRAM UNDERWRITERS, INC. Plaintiff V. CIVIL ACTION - LAW NO. 03-2845 HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE Defendant PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: Please withdraw E. RALPH GODFREY, Esquire of Godfrey & Courtney, P.C./ Godfrey & Associates,. P.C. as counsel of record for Plaintiff in the above-referenced matter. Dated: October 12, 2007 Attorney Attorney ,17052 Plaintiff U:1RGodfreylAmericana v Hibberd Brothers InsurancelpleadinglPRAECIPE TO WITHDRAWN-ENTER APPEARANCE.doc GODREY & COURNTEY, P.C. f • CERTIFICATE OF SERVICE I, E. Ralph Godfrey, Esquire, hereby certify that I served a copy of the foregoing Praecipe to Withdraw and Praecipe to Enter Appearance upon all parties to this action, by mailing a copy thereof on this 12th day of October, 2007, to: Deborah A. Krull, Esquire Daly, Gorbey & O'Brien, P.C. 110 West Front Street, PO Box 199 Media, PA 19063 By U:TGodfreylAmericana v. Hibberd Brothers InsurancelpleadinglPRAECIPE TO WITHDRAWN-ENTER APPEARANCE. doc ?:.. ? cv?'_ ? rnrr' '-.- .> ..... --? ?-rs -s?? ??;, N ??,?`? ?-? -z , _ ?M.r' 1?-_ .w?F ... 'ti t ?? C,s.7 ..... ."?,{? AMERICANA FINANCIAL SERVICES IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA, INC. n/k/a CUMBERLAND COUNTY, PENNSYLVANIA AMERICANA PROGRAM UNDERWRITERS, INC. Plaintiff V. CIVIL ACTION - LAW NO. 03-2845 HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE Defendant PRAECIPE TO ENTER APPEARANCE Please enter the appearance of E. RALPH GODFREY, Esquire of Salzmann Hughes, P.C. as counsel of record for the Plaintiff in the above-referenced matter. By: Dated: October 12, 2007 SALZMANN HUGHES, P.C. Attorney for Plaintiff U: RGodfreylAmericana v. Hibberd Brothers InsurancelpleadinglPRAECIPE TO WITHDRAWN-ENTER APPEARANCE.doc Suite 1 Carlisle, PA 17015 717.249.6333 CERTIFICATE OF SERVICE I, E. Ralph Godfrey, Esquire, hereby certify that I served a copy of the foregoing Praecipe to Withdraw and Praecipe to Enter Appearance upon all parties to this action, by mailing a copy thereof on this 12th day of October, 2007, to: Deborah A. Krull, Esquire Daly, Gorbey & O'Brien, P.C. 110 West Front Street, PO Box 199 Media, PA 19063 By U: TGodfreylAmericana v. Hibberd Brothers InsurancelpleadinglPRAECIPE TO WITHDRAWN-ENTER APPEARANCE. doe '., ry t Fri 4 a, OCT 15 2007 AMERICANA FINANCIAL SERVICES : OF PENNSYLVANIA, INC. n/k/a AMERICANA PROGRAM UNDERWRITERS, INC. Plaintiff: V. HI13BERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE Defendant NO.03 -2845 PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: E. Ralph Godfrey, Esquire, Counsel for the Plaintiff in the above action(s), respectfully represents that: 1. The above-captioned action(s) is at issue. 2. The claim of the plaintiff in the action is $ $26,448.23 The counterclaim of the defendant in the action is: N/A. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Deborah A. Krull, Esquire Daly, Gorbey & O'Brien, P.C. 110 West Front Street, PO Box 199 Media, PA 19063 THEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitted, Date: 167--12 ^y IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SALZMANN HUGHES, P.C. ORDER OF COURT AND NOW, v? 7/ 2007, in considerafon of the foregoing petition, ql and yc,AA kn?,( ?O? . kEsq. are appointed arbitrators in the above captioned tion(s a prayed r. (the Court?"°?? c P.J. >- co LL, - . , r. Esq. &0 q. R,alpgr{,,,1? `? ? P 1oi,,#01 OKO FRANK W. DALY & ASSOCIATES, INC. By: Frank W. Daly, Esquire Attorney I.D. #19485 110 West Front Street Media, Pennsylvania 19063 (610) 565-7520 Attorney for Defendant .- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW AMERICAN FINANCIAL SERVICES OF PENNSYLVANIA, INC. n/k/a AMERICANA PROGRAM UNDERWRITERS, INC. Plaintiff VS. HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE Defendant No. 03-2845 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as counsel on behalf of the Defendant HIBBERD BROTHERS, INC. d/b/a HIBBERD BROTHERS INSURANCE in the above-captioned matter. FRANK W. DALY & ASSOCIATES, INC. 4 By: FRANK W. DALY, ESQUIRE Attorney for Defendant Dated• i e - z ?_ ° 1•-c C? ti ?, :? ? r ' - _ 1 ^; I s »? te'"} ?` ? ? ? s? ?. ,`ti ;'? , j ? i V ? AMERICANA PROGRAM COURT OF COMMON PLEAS OF UNDERWRITERS, INC., CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. HIBBERD BROTHERS, INC., DEFENDANT 03-2845 CIVIL TERM ORDER OF COURT AND NOW, this day of January, 2008, the appointment of Richard D. Koch, Esquire, to the Board of Arbitrators in the above-captioned case, IS VACATED. Lorin A. Snyder, Esquire, is appointed in his place. By th Edgar B. Bayley, J. John E. Slike, Esquire ? Chairman Lorin A. Snyder, Esquire? Court Administrator :sal I?3°I ab *Gr CV5 ca &u c AMERICANA FINANCIAL SERVICES IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA, INC., n/k/a CUMBERLAND COUNTY, PENNSYLVANIA AMERICANA PROGRAM UNDERWRITERS, INC., ; Plaintiff V. HIBBERD BROTHERS, INC., d/b/a HIBBERD BROTHERS INSURANCE, Defendants CIVIL ACTION - LAW NO. 03-2845 PRAECIPE TO DISCONTINUE TO: THE PROTHONOTARY Please mark the above-captioned matter settled, discontinued and ended. Respectfully submitted Lavery, Faherty, Young & Patterson, P.C. Dated: 512-2 /c) g- Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 Attorney for Plaintiff rk CERTIFICATE OF SERVICE I, E. Ralph Godfrey, Esquire, hereby certify that I served a copy of the foregoing Praecipe to Discontinue upon all parties to this action, by depositing a copy of the same in the U.S. Mail, first class mail to: Frank Daly, Esquire Daly & Associates, P.C. 110 West Front Street P. O. Box 199 Media, PA 19063 Dated: ?ZZ C Y By E. Ralph Godf e , Es uire IM r c4) 'IN r:.r