HomeMy WebLinkAbout07-7506IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
IN THE MATTER OF THE
APPLICATION BY THE
HARLEYSVILLE INSURANCE
COMPANY as subrogee of KAREN'S
COUNTRY FURNITURE, PETITION
FOR ISSUANCE OF A SUBPOENA
TO TIMOTHY L. YEAKEL
Petitioner,
NO.: C)7- '75o4.
0 % tVtl ('em
PETITION FOR A LETTER OF ROGATORY AND AN ORDER TO TAKE THE
DEPOSITION OF COMMONWEALTH RESIDENT. TIMOTHY L. YEAKEL FOR USE
IN A FOREIGN COURT
I, Michael F. Wallace, Esquire, attorney for petitioner, The Harleysville Insurance
Company as subrogee of Karen's Country Furniture, (hereinafter, "Harleysville") hereby petition
the Court to enter an Order pursuant to 42 Pa.C.S.A. § 5326 granting counsel for petitioner
permission to issue a Subpoena Duces Tecum to Timothy L. Yaekel in connection with an out of
state action currently pending in the Superior Court of New Jersey, Law Division, Camden
County, Docket Number CAM-L-4119-06, under the caption Harleysville Insurance Company as
subrogee of Karen's Country Furniture, Plaintiff verses All-Phase Mechanical Incorporated,
Defendant. In support of this petition, Michael F. Wallace avers as follows:
1. On or about May 5, 2006, petitioner, Harleysville filed a Complaint and Jury
Demand in the Superior Court of New Jersey, Law Division, Camden County, naming All-Phase
Mechanical, Inc. as the sole defendant (hereinafter "New Jersey Lawsuit"). See Exhibit A, a true
and correct copy of Plaintiffs Complaint.
t
2. The New Jersey Lawsuit arises out of a June 30, 2004 fire that occurred at
Plaintiff, Harleysville's insured's property located at 165 Route 73, Voorhees, New Jersey.
Plaintiff alleged in its New Jersey Lawsuit that the fire and resulting damages to Plaintiff was
caused by Defendant, All-Phase Mechanical, Inc.'s negligent service and maintenance of a roof-
top air conditioning unit. Accordingly, the Complaint attached hereto as Exhibit A sets forth
negligence and breach of contract counts against Defendant, All-Phase Mechanical, Inc. See
Exhibit A.
3. Thereafter, the parties in the New Jersey Lawsuit exchanged written discovery
and Defendant produced several service tickets related to the work it performed on the subject air
conditioning unit that was involved in the fire which is the subject of the New Jersey Lawsuit.
4. According to the service tickets and documents produced by the Defendant in the
New Jersey Lawsuit, Timothy Yeakel was the employee of Defendant in the New Jersey Lawsuit
who performed most of the work and/or service on the air conditioning unit.
5. During the deposition of a representative of Defendant, All-Phase Mechanical,
Inc. in the New Jersey Lawsuit, All-Phase's principal, Matthew Strimple testified that Timothy
Yeakel was no longer employed by All-Phase and that the last known address of Mr. Yeakel was
8 West Vine Street, Shiremanstown, Pennsylvania 17001, Cumberland County, Pennsylvania.
6. As the Plaintiffs allegations against the Defendant in the New Jersey Lawsuit
concern All-Phase's maintenance and service of a roof-top air conditioning unit that was
involved in a fire and Mr. Timothy L. Yeakel was All-Phase's employee who performed most of
the service and/or work on the subject air conditioning unit, Mr. Yeakel's deposition is directly
relevant to Plaintiffs claims in the New Jersey Lawsuit.
2
7. Pursuant to Rule 4:11-5 of the New Jersey Rules of Court, Petitioner filed a
motion in the New Jersey Lawsuit for a Commission to Issue a Subpoena for the deposition of
Mr. Timothy L. Yeakel. Upon reviewing the motion papers submitted in the New Jersey
Lawsuit, the Honorable Ronald J. Friedman, J.S.C., executed an Order and Commission for the
issuance of a Subpoena Duces Tecum for the deposition of Timothy L. Yeakel. See Exhibit B, a
true and correct copy of the Court's executed Order and Commission.
WHEREFORE, pursuant to 42 Pa.C.S.A. § 5326, Petitioner respectfully requests that the
Court enter and Order allowing counsel to issue a Subpoena Duces Tecum to Timothy L. Yeakel
to appear and testify at a time and place to be fixed by the subpoena.
LAW OFFICES OF ROBERT A. STUTMAN, P.C.
Dated: WAO/?
7 MICHA F. WALLACE, ESQUIRE
20 East Taunton Road, Suite 403
Berlin, New Jersey 08009
Telephone: (856) 767-6800
Facsimile: (856) 767-6810
Attorney for Petitioner, The Harleysville Insurance
Company a/s/o Karen's Country Furniture
3
g,ti, d?f /4
03LAI.3
S31H3S 00008
x y 0
H
' ?
? ? H
?1
..
H? U1 a0
? t+d Sn U]
H
?
k
? HO
Nm t4 k
J C. ro
bq o
pnj b
bpd
L %o0 H z
O
«? 'Sf Hr
y
0 N
N [rJ
o
.?t
[
? ?
0 C
U) 0
1-3 K) ?l
GOd
W o
!H?
Gi r't. W t?J
O H y
H H L'
k t?pjy+y
1-3 v :V U
l
N 7a
H
z w H co
r1
UH1 'H1i
?? H Z () OW
x O
td ro
hi 00 x
z
pa tv Syu
H x
Z?H IH H
? Cl) N
w n
gQ ty H
0Hp N m
y
H
txir a?x C?
[
Z H 0 4
' y
:V4 4 to
ro H
0
r kO
00
o°
ox tg
zr? o
'
H
n
nuzi
??H
L?7
n
0
11 x
?t+o
N(rJ 01
H
O
mm
n
0
t?
bn
H
H
z
n
c
20 ci
nn p,,a
2
? POW R
wtg ?O
r po
ro Wok
z 0
O 4
0
0o OD
Ln N
m O
W
W
J
N
N
0
n
H
O
H
H
n
LAW OFFICES OF ROBERT A. STUTMAN, P.C.
20 East Taunton Rd.
Suite 403
Berlin, NJ 08009
(856) 767-6800
BY: THOMAS PAOLINI, ESQUIRE
MICHAEL F. WALLACE, ESQUIRE
Attorneys for the Plaintiff
Mr
CAMDEN COUNTY SUPERIOR COURT
HARLEYSVILLE INSURANCE SUPERIOR COURT OF NEW JERSEY
COMPANY as subrogee of KAREN'S CAMDEN COUNTY - LAW DIVISION
COUNTRY FURNITURE, PIC
DOCKET NO.: 4119 &%a L U
Plaintiff,
Civil Action
V.
ALL PHASE MECHANICAL, INC. COMPLAINT
Defendant.
Plaintiff, Harleysville Insurance Company, as subrogee of Karen's Country Furniture
(hereinafter "Harleysville"), by and through its attorneys, Law Offices of Robert A. Stutman,
P.C. hereby avers as follows:
1. Plaintiff, Harleysville, is a New Jersey Corporation with a principal place of
business located at P.O. Box 1016, 308 Harper Drive, Suite 280, Moorestown, New Jersey.
2. Defendant, All Phase Mechanical, Inc. (hereinafter "All Phase), is a company
incorporated in the Commonwealth of Pennsylvania with a principal place of business at 3033
Finland Road, Pennsburg, Pennsylvania 18073 and, at all times relevant hereto, held itself out as
a professional in the field of mechanical, heating and air conditioning equipment.
3. At all times relevant hereto, Harleysville's insured, Karen's Country Furniture
(hereinafter "Plaintiffs Insured"), was the owner of a business located at 165 Route 73 South,
Voorhees, New Jersey (hereinafter "the Property").
4. At all times relevant hereto, Harleysville provided insurance coverage to Karen's
Country Furniture under Policy No. B07G7094.
5. Upon information and belief, Defendant, All Phase inspected, serviced, repaired
and/or maintained a Heating, Ventilation and Air Conditioning (hereinafter "HVAC") unit at the
Property on or about June 30, 2004.
6. On or about July 1, 2004, a fire occurred at the Property.
7. The aforementioned fire was cause by the negligent acts and/or omissions of
Defendant.
8. As a direct and proximate result of the July 1, 2004 fire caused by Defendant,
Plaintiff s Insured sustained damages to its real, personal and business property and sustained
business interruption losses in excess of $600,000.00.
9. Pursuant to the insurance policy in effect at the time of the fire, Plaintiff has made
payment to its insured in excess of $600,000.00 in connection with losses and damages sustained
in the fire.
10. By virtue of its insurance payments made to its insured, Plaintiff is contractual,
legally and equitably subrogated to the rights of its insured for any recovery in this matter to the
extent of such payments made to its insured.
COUNTI
Negligence
11. Plaintiff hereby incorporates by reference paragraphs 1 through 10 of this
Complaint as if fully set forth herein at length.
12. Defendant, All Phase had a duty to exercise reasonable care in connection with its
inspection, service, repair and maintenance of the HVAC unit at the Property and to protect
Plaintiffs Insured against the risk of fire.
2
13. The July 1, 2004 fire and the resulting damages were caused by the negligence,
carelessness, negligent acts and/or omissions of Defendant, All Phase, either acting
independently and/or by and through its duly authorized agents, servants, workmen, employees,
contractors and/or subcontractors acting within the scope and course of their employment as
follows:
a. failing to properly inspect, service, repair and/or maintain the HVAC unit
at the Property;
b. failing to take proper and adequate precautions to keep the HVAC unit and
the Property safe and free from fire;
C. failing to properly supervise and/or inspect the work performed by its
employees, agents, contractors and/or subcontractors who had been involved in the service,
inspection, maintenance and/or repair of the HVAC unit; and
d. failing to warn Plaintiff's Insured of the inherent risk of fire created by the
HVAC unit.
e. utilizing employees which Defendant knew, or in the exercise of
reasonable care, should have known, were not properly trained for the work to be performed at
the Property;
£. violating and/or failing to comply with recognized industry wide standards
and/or trade practices pertaining to Defendant's work at the Property;
g. failing to perform the work in a careful and workmanlike manner;
h. failing to inspect, service, repair and/or maintain the HVAC unit at the
Property so as to not create a foreseeable risk of harm to persons or property;
3
failing to inspect, service, repair and/or maintain the HVAC unit at the
Property in a manner consistent with industry standards, trade practices and/or local construction,
building and/or mechanical codes, regulations, rules and/or requirements;
failing to exercise due care in the inspection, service, repair and/or
maintenance of the HVAC unit at the Property; and
k. such other acts and omissions that will be revealed during discovery.
14. The negligence, carelessness, negligent acts and/or omissions described in the
proceeding paragraphs were committed by the duly authorized agents, servants, employees,
contractors and/or subcontractors of the Defendant, All Phase, acting within the course and scope
of their agency and/or employment.
15. As a direct and proximate result of Defendant, All Phase's carelessness and/or
negligent acts and/or omissions, the fire of July 1, 2004 occurred at the Property and the
Plaintiffs Insured was caused to suffer substantial damages and losses.
16. As a result of the damages and losses from the July 1, 2004 fire, Plaintiff has
made payments in excess of $600,000.00 to its insured in accordance with the terms and
conditions of its insurance agreement with its insured.
17. Plaintiff is contractual, legally and equitably subrogated to the rights of its insured
for any recovery in this matter to the extent of such payments made to its insured.
WHEREFORE, Plaintiff, Harleysville, demands judgment against Defendant, All Phase
in an amount in excess of $600,000, plus costs of suit, interest and other such and further relief
as this Honorable Court deems just and appropriate under the circumstances.
4
COUNT II
Breach of Contract
16. Plaintiff hereby incorporates by reference paragraphs 1 through 15 of this
Complaint as if fully set forth herein at length.
17. Plaintiff s Insured entered into a written and/or oral contract with Defendant, All
Phase wherein Defendant, All Phase agreed to inspect, service, repair and/or maintain the HVAC
unit at the Property.
18. Defendant, All Phase expressly and/or impliedly agreed to perform said work in a
good and workmanlike manner and in accordance with all relevant local, state and federal laws,
rules, regulations, standards and/or codes, as well as in accordance with all industry standards
and trade practices.
19. Defendant, All Phase breached the contract by the following:
a. failing to properly inspect, service, repair and/or maintain the HVAC unit
at the Property;
b. failing to take proper and adequate precautions to keep the HVAC unit and
the Property safe and free from fire;
C. failing to properly supervise and/or inspect the work performed by its
employees, agents, contractors and/or subcontractors who had been involved in the service,
inspection, maintenance and/or repair of the HVAC unit;
d. failing to warn Plaintifps Insured of the inherent risk of fire created by the
HVAC unit;
e. utilizing employees which Defendant knew, or in the exercise of
reasonable care, should have known, were not properly trained for the work to be performed at
the Property;
5
f, violating and/or failing to comply with recognized industry wide standards
and/or trade practices pertaining to Defendant's work at the Property;
g. failing to perform the work in a careful and workmanlike manner;
h. failing to inspect, service, repair and/or maintain the HVAC unit at the
Property so as to not create a foreseeable risk of harm to persons or property;
i. failing to inspect, service, repair and/or maintain the HVAC unit at the
Property in a manner consistent with industry standards, trade practices and/or local construction,
building and/or mechanical codes, regulations, rules and/or requirements;
j. failing to exercise due care in the inspection, service, repair and/or
maintenance of the HVAC unit at the Property; and
k. such other acts and omissions that will be revealed during discovery.
20. As the direct and proximate result of Defendant, All Phase's breach of contract,
the July 1, 2004 fire occurred at the Property and Plaintiffs insured was caused to suffer
substantial damages and losses.
21. As a result of the July 1, 2004 fire, Plaintiff has made payments in excess of
$600,000.00 to its insured in accordance with the terms and conditions of its insurance
agreement with its insured.
22. Plaintiff is contractually, legally and equitably subrogated to the rights of its
insured for any recovery in this matter to the extent of such payments made to its insured.
WHEREFORE, Plaintiff, Harleysville, demands judgment against Defendant, All Phase
in an amount in excess of $600,000.00, plus costs of suit, interest and other such and further
relief as this Honorable Court deems just and appropriate under the circumstances.
6
CERTIFICATION PURSUANT TO RULE 4:5-1
Pursuant to R. 4:5-1, the undersigned counsel certifies that there are no other actions or
arbitrations pending or contemplated involving the subject matter of this controversy at this time and
there are no additional known parties who should be joined to the present action at this time. In
addition, the undersigned recognizes the continuing obligations of each party to file and serve on all
parties and the Court if there is a change in the facts stated in this original certification. I certify the
foregoing to be true. I am aware that if the above is willfully false, I am subject to punishment.
LAW OFFICES OF ROBERT A. STUTMAN, P.C.
Dated:
ICHAEL F. WA LAC IRE
Attorney for Plaintiff
9
?x??b?l ?
M O d ros 00313A338
S31H3S 00008
Curtis R. Long
Prothonotary
office of the Protbonotarp
Cumberlanb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
Date NOVEMBER 16, 2007
TO: ATTORNEY WALLACE
We are returning the enclosed transaction(s) for the following
reason(s) :
• Incorrect fee received $ should be $
• Need signature
• Must provide duplicate copies of the proposed judgment, decree or order
and stamped envelopes addressed to the said persons and/or attorneys for
notification. Please note: This notification is not a substitute for service
of process.
Other reasons : WE NEED A PETITION FOR LETTER OF ROGATORY
WITH AN ORDER FOR THE CUMBERLAND COUNTY COMMON
PLEAS JUDGE TO SIGN. WE CANNOT ISSUE THE SUBPOENA ON THE
NEW JERSEY COMMISSION. THE FEE IS $78.50 FOR THE PETITION
AND $3.00 FOR EACH SUBPOENA.
Note: All transactions directed to this office must include a SELF
ADDRESSED ENVELOPE WITH POSTAGE if a return receipt or
certificate is desired. PAYMENT or FEE at time of filing will be
required in every instance.
Curtis R. Long, Prothonotary
eputy Prothonotary
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573
TRUE COPY
4 2
RONALD J. REEMAN, J.S.C.
HARLEYSVILLE INSURANCE
COMPANY as subrogee of KAREN'S
COUNTRY FURNITURE,
Plaintiff,
V.
ALL PHASE MECHANICAL, INC.
Defendant.
: SUPERIOR COURT OF NEW JERSEY
: CAMDEN COUNTY - LAW DIVISION
DOCKET NO.:
Civil Action
L-411q-o!o
ORDER FOR A COMMISSION TO
ISSUE A SUBPOENA FOR A
DEPOSITION OF OUT-OF-STATE
WITNESS TIMOTHY YEAKLE
This matter having been brought before the Court on motion of Law Offices of
Robert A. Stutman, P.C., attorneys for plaintiff, for an Order and a Commission for the Issuance
of a Subpoena Duces Tecum for the Deposition of Out-of-State Witness, Timothy Yeakle; and
the Court having reviewed the moving papers and any opposition filed thereto and for good
cause shown:
??E,p.,rn er
It is on this 2- day of S , 2007:
ORDERED that plaintiff shall be permitted to issue a Subpoena Duces Tecum upon out
of state witness, Timothy Yeakle, compelling him to appear for a deposition in this New Jersey
action; and
It Is Further ORDERED that the Court shall execute a commission for the issuance of a
Subpoena Duces Tecum for the deposition of Timothy Yeakle; and
5
A •
TRUE COPY
4 (, .'I.,
RONALD J. REEMAN, J.S.C.
HARLEYSVILLE INSURANCE
COMPANY as subrogee of KAREN'S
COUNTRY FURNITURE,
DOCKET NO.:
Plaintiff,
Civil Action
V.
ALL PHASE MECHANICAL, INC.
Defendant.
SUPERIOR COURT OF NEW JERSEY
CAMDEN COUNTY - LAW DIVISION
COMMISSION
As plaintiff has satisfied the necessary and procedural requirements and laws of the State
of New Jersey for the deposition of a out-of-state witness domiciled in the Commonwealth of
Pennsylvania, a Commission is hereby issued by this Court for the deposition of defendant's
former employee, Timothy Yeakle, who is a resident of the Commonwealth of Pennsylvania in
this New Jersey action.
HONORAB
AN J.S.C.
1 ,
7
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
IN THE MATTER OF THE
APPLICATION BY THE
HARLEYSVILLE INSURANCE
COMPANY as subrogee of KAREN'S
COUNTRY FURNITURE, PETITION
FOR ISSUANCE OF A SUBPOENA
TO TIMOTHY L. YEAKEL
Petitioner,
-, 7?; -6 4 cJ J,( - er&
NO.. 6
VERIFICATION
I, Michael F. Wallace, Esquire, hereby certify and state that I am an attorney with the
Law Offices of Robert A. Stutman, P.C., counsel for petitioner the Harleysville Insurance
Company as subrogee of Karen's Country Furniture in this action, that I have reviewed the
foregoing petition for the issuance of a Subpoena Duces Tecum to take the deposition of
Timothy L. Yeakel for use in a foreign court and the facts contained therein are true and correct
to the best of my knowledge, information and belief. I understand that these statements made
herein are subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to
authority.
LAW OFFICES OF ROBERT A. STUTMAN, P.C.
V.- wto/o,-, ? -1o
Dated: /d//0/07
MICHAEL F. W LAC , EMU-IRE
20 East Taunton Road, Suite 403
Berlin, New Jersey 08009
Telephone: (856) 767-6800
Facsimile: (856) 767-6810
Attorney for Petitioner, The Harleysville Insurance
Company a/s/o Karen's Country Furniture
4
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
IN THE MATTER OF THE
APPLICATION BY THE
HARLEYSVILLE INSURANCE
COMPANY as subrogee of KAREN'S
COUNTRY FURNITURE, PETITION
FOR ISSUANCE OF A SUBPOENA
TO TIMOTHY L. YEAKEL
NO.: - -7S-64
Petitioner,
CERTIFICATE OF SERVICE
This is to certify that true and correct copies of all papers contained in the annexed
Petition for an Order to Issue a Subpoena for the Deposition of Timothy L. Yeakel for use in a
foreign court with attached Exhibits, Verification and Proposed Form of Order, were delivered
via United States Postage Fire Class Mail to the Office of the Prothonotary, court of Common
Pleas, Cumberland County, Pennsylvania for filing on this /0/y of December,
2007, and counsel for Defendant, All-Phase Mechanical, Inc. in the New Jersey Law Suit.
LAW OFFICES OF ROBERT A. STUTMAN, P.C.
01
Dated: IdI1016 loll ???4w ? Cz _10'14?19
MICHAEL F. WA LACE, ESQUIRE
20 East Taunton Road, Suite 403
Berlin, New Jersey 08009
Telephone: (856) 767-6800
Facsimile: (856) 767-6810
Attorney for Petitioner, The Harleysville Insurance
Company a/s/o Karen's Country Furniture
5
00
00
OCj
-C ?
b
r•.s ?
c?
rn s
3 C?
Y
t?
CM?
t
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
IN THE MATTER OF THE
APPLICATION BY THE
HARLEYSVILLE INSURANCE
COMPANY as subrogee of KAREN'S
COUNTRY FURNITURE, PETITION
FOR ISSUANCE OF A SUBPOENA
TO TIMOTHY L. YEAKEL
Petitioner,
NO.. 1)7- '75D(p
DEC 19 207
C iv ; ( -CrM
ORDER GRANTING PETITION TO AWARD PROCESS PURSUANT TO
42 Pa. C.S.A. & 5326
AND NOW, on this 31 t day of 2007,
upon consideration of the Petition of Michael F. Wallace, Esquire of the Law Offices of Robert
A. Stutman, P.C. for an Order to issue a Subpoena Duces Tecum for the deposition of Timothy
L. Yeakel, pursuant to 42 Pa. C.S.A. § 5326, it is hereby ORDERED that said petition is
GRANTED an that Petitioner may issue a subpoena to Timothy L. Yeakel who shall appear at
such time and place as to be sepecified in the subpoena to provide oral testimony by way of
deposition in a certain cause of action pending in the Superior Court of New Jersey, Law
Division, Camden County, Docket Number: CAM-L-4119-06, wherein the Harleysville
Insurance Company as subrogee of Karen's Country Furniture is the Plaintiff and All-Phase
Mechanical, Inc. is the Defendant. The depositions shall be conducted within accordance with
the practice and procedures of the Superior Court of New Jersey.
JUDGE
Dated:
6
7?:>47j2?? •zv `f tv Pr 7