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HomeMy WebLinkAbout08-3051%" 08HB-00042 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Fire Insurance Company a/s/o Case No.: 0% - 3051 C.,iV<< TP&M Emily C. Clarke and Theresa Slattery, Plaintiff VS. McPherson & Co., Defendant TION NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in following pages, you must take action within twenty (20) days after this Complaint and Notice are set by entering a written appearance personally or by attorney and filing in writing with the court } defenses or objections to the claims set forth against you. You are warned that if you fail to do so, case may proceed without you, and a judgment may be entered against you by the court without fur notice for any money claimed in the Complaint or for any other claim or relief requested by the Plain 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 HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 r 08HB-00042 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Fire Insurance Company a/s/o Case No.: OF-0,51 &&J 7-t,.-- Emily C. Clarke and Theresa Slattery, Plaintiff vs. McPherson & Co., Defendant COMPLAINT TION AND NOW comes the Plaintiff, by and through their counsel, JoAnne E. Kinzel, Snyder & Dorer, and sets forth the following Complaint: 1. Nationwide Mutual Fire Insurance Company (hereafter "Nationwide")is an incorporated entity with a principle place of business at 1001 Hector Street, Suite 300, Conshohocken, Montgomery County, Pennsylvania 19428. At all times relevant hereto, Nationwide was in the business of providing homeowners insurance, including coverage for personal property, to residents of the Commonwealth of Pennsylvania. 2. At all times relative hereto, Nationwide provided homeowners insurance to Emily C. Clarke pursuant to policy number: 58 37 HO 164672 and to Theresa Slattery pursuant to policy number: 58 37 HO 682614. Both policies provide coverage for stolen jewelry. 3. Defendant, McPherson & Co. is a corporation, partnership or other business in the business of evaluating, assessing, appraising, repairing and replacing jewelry items, including custom-made jewelry. Defendant has a principle place of business at 730 North Front Street, Wormleysburg, Pennsylvania 17043. 4. On September 25, 2007, Theresa Slattery, who resides at 866 Cedar Head Road, Sugarloaf, Pennsylvania 18249 reported to Nationwide that her diamond engagement ring had been stolen from her vehicle. 5. On or about October 26, 2007, Emily C. Clarke of 345 Farnum Road, Media, Pennsylvania 19063 reported to Nationwide that numerous items of jewelry were stolen from home while she was away on vacation. 6. Pursuant to the terms and conditions of the homeowners policies with Emily C. Clarke and Theresa Slattery, Nationwide retained Defendant, McPherson & Co. to work directly with Ms. Slattery and Ms. Clarke to replace their stolen jewelry with items of like kind and quality. 7. On December 20, 2007, McPherson & Co. sent an invoice to Nationwide in the amount of $2,885.00 to replace Theresa Slattery's engagement ring. A copy of said invoice is attached hereto as Exhibit "A". 8. On December 21, 2007, Nationwide sent a check (check number: 58-718661) to McPherson & Co. in the amount of $2,885.00 in the full payment for the cost of Ms. Slattery's ring. 9. Prior to taking possession of the replacement ring, Theresa Slattery notified Nationwide that she had found her original diamond ring and withdrew her claim. 10. Defendant, McPherson & Co. still retains possession of the ring and has failed to return the payment made by Nationwide in the amount of $2,885.00 despite repeated requests by Nationwide for its return. 11. Similarly, in the case of Emily Clarke, Nationwide paid Defendant, McPherson & Co. a total of $9,598.30 to replace specific pieces of jewelry which were stolen from Ms. Clarke A list of said pieces and their cost is attached hereto as Exhibit "B". Unfortunately, Ms. Clarke was not happy with the replacement pieces offered by Defendant, McPherson & Co. and electec to work with another jeweler from whom she ultimately purchased her replacement pieces. 12. Defendant, McPherson & Co. still has the jewelry pieces and, despite numerous requests from Nationwide, has failed to return the payment made by Nationwide in the amount $9,598.30. COUNT I - BREACH OF CONTRACT 13. Plaintiff incorporates herein by reference paragraphs 1 through 12 above as though set forth at length. 14. Plaintiff and Defendant entered into a verbal contract pursuant to which Defendant agreed to work with Nationwide's policyholders for the replacement of certain jewelry items stolen from them. 15. Pursuant to said contract, Defendant was to be paid to the extent that he was able to find or create replacement jewelry to the satisfaction of Nationwide's policyholders. 16. Payments totaling $12,483.30 were made to Defendant by Nationwide conditioned upon Defendant's satisfactory performance of the terms of the contract. 17. In the case of Ms. Slattery, the "stolen" engagement ring was found and, therefore, the replacement ring was never delivered. 18. In the case of Ms. Clarke, the insured was dissatisfied with the quality of the merchandise offered by Defendant and, therefore, consulted with and purchased her replacemen jewelry items from another jeweler. Accordingly, the jewelry items Defendant offered to Ms. Clarke, for which Nationwide paid $9,598.30, were never delivered. 19. Defendant McPherson & Co. has breached its agreement to provide satisfactory replacements for the stolen jewelry items in question and is, therefore, not entitled to retain payment for said items, which were never delivered. WHEREFORE, Nationwide requests that Defendant be required to reimburse N for the total cost of the unfulfilled contract in the amount of $12,483.30. COUNT II - UNJUST ENRICHMENT 20. Plaintiff incorporates herein by reference paragraphs 1 through 12 above as though set forth at length. 21. Defendant, McPherson & Co. has received payments from Nationwide totaling $12,483.30 for jewelry items which were never accepted by or delivered to Nationwide's insureds. Defendant has not only retained the jewelry items in question, but has also retained the payments therefore. Accordingly, Defendant has been unjustly enriched at Plaintiff s expense and should be required to return payment in full to Nationwide in the amount of $12,483.30. WHEREFORE, Nationwide requests that Defendant be required to reimburse for the amount by which Defendant was unjustly enriched, to wit: $12,483.30. COUNT III - CONVERSION 22. Plaintiff incorporates herein by reference paragraphs 1 through 12 above as though set forth at length. 23. The checks totaling $12,483.30 were paid by Nationwide to Defendant, McPherson & Co. contingent upon Defendant obtaining and providing replacement jewelry of like kind and quality to replace jewelry stolen from Nationwide's insureds. 24. Defendant failed to provide replacement jewelry and, therefore, is not entitled to retain the checks totaling $12,483.30. 25. Upon Nationwide's request, the Defendant has refused to return the checks paid to them. 26. Retention of the funds by the Defendant constitutes conversion. 27. Nationwide is entitled to the return of the $12,483.30 which was paid to Defendant. WHEREFORE, Nationwide requests that Defendant be required to reimburse Nation for the converted funds totaling $12,483.30. COUNT IV - FRAUDULENT CONVERSION 28. Plaintiff incorporates herein by reference paragraphs 1 through 12 above as though set forth at length. 29. To the extent Nationwide is able to prove at time of trial that the Defendant's conversion was knowing, and therefore fraudulent, Nationwide is entitled to the return of its funds, plus interest and punitive damages. WHEREFORE, Nationwide requests that Defendant be required to reimburse for the fraudulently converted funds in the amount of $12,483.30, plus interest and punitive damages. COUNT V - WRONGFUL APPROPRIATION 30. Plaintiff incorporates herein by reference paragraphs 1 through 12 above as though set forth at length. 31. Defendant knew that the payment by Nationwide was contingent upon Defendant's finding replacement jewelry of like kind and quality to the satisfaction of Nationwide's insureds. 32. Defendant failed in this endeavor but refused to return the $12,483.30 paid by Nationwide. Defendant's retention of said funds constitutes wrongful appropriation of Nationwide's property. WHEREFORE, Nationwide requests that Defendant be required to reimburse N for wrongfully appropriated funds in the amount of $12,483.30. Respectfully submitted, LAW OFFICE OF SNYDER & DORER By. _.._' JoAnne E I inzel, Esquire Identificat46n No. 55453 Attorney for Plaintiff Date: May 12, 2008 .-' 08HB-00042 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Fire Insurance Company a/s/o Case No.: Emily C. Clarke and Theresa Slattery, Plaintiff VS. ARBITRATION McPherson & Co., Defendant VERIFICATION I, Susan Thundu Luquis verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Dated: Susan Thundu Luquis Claims Representative Owe Cl ? C11 ° O ?? IITT t?YF y r?, f? f P Q CA ??1 CASE NO: 2008-03051 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NATIONWIDE MUTUAL FIRE INS CO VS MCPHERSON & CO MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MCPHERSON & CO the DEFENDANT at 1706:00 HOURS, on the 15th day of May , 2008 at 730 N FRONT STREET WORMLEYSBURG, PA 17043 by handing to BRIAN MCPHERSON, OWNER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 16.00 Postage .59 Surcharge 10.00 f (? - .00 y?a ?! ?"- ../44.59 Sworn and Subscibed to before me this of day So Answers: R. Thomas Kline 05/16/2008 NATIONWIDE INSURANCE By: beputly- Sheriff A. D. No. 08-3051 Civil Term HARTMAN UNDERHILL & BRUBAKER LLP By: Jeffrey P. Ouellet, Esquire Attorney ID No. 80170 221 East Chestnut Street Attorneys for Defendant: Lancaster, PA 17602-2782 McPherson & Co. (717) 299-7254 Fax: (717) 299-3160 NATIONWIDE MUTUAL FIRE IN THE COURT OF COMMON PLEAS INSURANCE COMPANY a/s/o : OF CUMBERLAND COUNTY, EMILY C. CLARK AND THERESA : PENNSYLVANIA SLATTERY, Plaintiff V. : CIVIL ACTION -ARBITRATION MCPHERSON & CO., NO. 08-3051 CIVIL TERM Defendant NOTICE TO PLEAD TO: Nationwide Mutual Fire Insurance Company c/o JoAnne E. Kinzel, Esquire Law Office of Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 You are hereby notified to file a written response to the enclosed Answer with New Matter and Counterclaims within twenty (20) days from service hereof or a judgment may be entered against you. HARTMAN DERHILL & BRUBAKER LLP Date: By: Jef ey . Ou let, Esquire Attorney I.D. No. 80170 Attorneys for Defendant McPherson & Co. 00530870.3 No. 08-3051 HARTMAN UNDERHILL & BRUBAKER LLP By: Jeffrey P. Ouellet, Esquire Attorney ID No. 80170 221 East Chestnut Street Attorneys for Defendant: Lancaster, PA 17602-2782 McPherson & Co. (717) 299-7254 Fax: (717) 299-3160 NATIONWIDE MUTUAL FIRE IN THE COURT OF COMMON PLEAS INSURANCE COMPANY a/s/o : OF CUMBERLAND COUNTY, EMILY C. CLARK AND THERESA : PENNSYLVANIA SLATTERY, Plaintiff V. : CIVIL ACTION -ARBITRATION MCPHERSON & CO., NO. 08-3051 CIVIL TERM Defendant ANSWER OF DEFENDANT, MCPHERSON & CO., WITH NEW MATTER AND COUNTERCLAIM And now, Defendant, McPherson & Co., through its counsel, Hartman Underhill & Brubaker LLP, files the following Answer with New Matter and Counterclaim to the pending Complaint filed by Plaintiff, Nationwide Mutual Fire Insurance Company a/s/o Emily C. Clarke and Theresa Slattery ("Nationwide"): 1. Admitted upon information and belief. 2. Denied. After reasonable investigation, McPherson & Co. is without knowledge as to the existence and scope of coverage allegedly provided by Nationwide to Ms. Clarke and Ms. Slattery, and, consequently, the averments in Paragraph Two (2) are denied. Strict proof thereof is demanded. 00530870.3 No. 08-3051 Civil Term 3. Admitted with clarification. At all times pertinent to the Complaint, McPherson & Co. provided the stated services at the named address. McPherson & Co. also sold jewelry items at all relevant times. 4. Admitted in part, denied in part. Based on information and belief, it is admitted that Ms. Slattery told Nationwide that she had certain jewelry stolen. After reasonable investigation all other averments in this Paragraph Four (4) are denied, and strict proof thereof is demanded. 5. Admitted in part, denied in part. It is admitted that Ms. Clarke told Nationwide that she had certainly jewelry stolen. After reasonable investigation all other averments in this Paragraph Five (5) are denied, and strict proof thereof is demanded. 6. Admitted in part, denied in part. It is admitted that Nationwide retained McPherson & Co. to work with Ms. Slattery and Ms. Clark to attempt to replace certain jewelry items. The averment asserting that Nationwide did this pursuant to the terms and policies of certain homeowners policies is a legal conclusion to which no response is required, and, therefore, that averment is denied. 7. Admitted in part, denied in part. It is admitted that McPherson & Co. sent an invoice in the stated amount to Nationwide on or about December 20, 2007. The copy of the Complaint provided to McPherson & Co. was without Exhibits, so, presently, McPherson & Co. denies that a copy of that invoice is attached as Exhibit "A" to the 00530870.3 2 No. 08-3051 Civil Term Complaint. 8. Admitted in part, denied in part. It is admitted that Nationwide sent a check to McPherson & Co. on the stated date in the amount of $2,885.00. The averment that the check was issued in "full payment for the cost of Ms. Slattery's ring" is a legal conclusion to which no response is required. That allegation, therefore, is deemed denied and strict proof thereof is demanded. 9. Denied. After reasonable investigation, McPherson & Co. has no knowledge as to what Ms. Slattery may have told Nationwide, and whether Ms. Slattery withdrew her claim. That allegation, therefore, is deemed denied and strict proof thereof is demanded. 10. Admitted with clarification. By way of further answer, in order to satisfy the claim of Ms. Slattery, McPherson & Co. expended significant amounts of time and money, including the purchase of a mounting and a diamond. McPherson & Co. was in the process of setting the diamond when McPherson & Co. was instructed to stop working on the claim. 11. Admitted in part, denied in part. It is admitted that Nationwide sent McPherson & Co. a check in the amount of $9,598.30 in an attempt to replace certain jewelry pieces owned by Ms. Clarke. In an attempt to satisfy Ms. Clarke, McPherson & Co. expended significant amounts of time and money in an attempt to create satisfactory 00530870.3 3 No. 08-3051 Civil Term jewelry pieces for Ms. Clarke. McPherson & Co. made reasonable efforts to satisfy Ms. Clarke, and at all times acted in good faith in an effort to provide her with replacement jewelry pieces. It is admitted that Ms. Clarke was dissatisfied with the jewelry pieces, and she ultimately received her jewelry pieces from another jeweler. It is denied that a list of the pieces is attached as Exhibit "B", as there are no exhibits attached to the Complaint served on the Defendant. 12. Admitted with clarification. By way of further answer, McPherson & Co. made an offer to Steve Grauls, an employee, representative and/or agent of Nationwide, to: (a) return the replacement jewelry pieces to Nationwide, with McPherson & Co. receiving a credit for the amount those component pieces cost; and (b) subtract time and travel expenses associated with procuring the items for Ms. Slattery and Ms. Clarke (collectively, (a) and (b) will be referred to as the "McPherson & Co. expenses"). If there was a difference between the McPherson & Co. expenses and the amount of the checks sent by Nationwide, McPherson & Co. would send a check to Nationwide for the difference. Although McPherson & Co. actually lost money on these claims, in an effort to resolve this claim McPherson & Co. indicated to Mr. Grauls that the check for the difference would be approximately $600-$700. Mr. Grauls orally agreed to accept that amount and the replacement jewelry to resolve the Clarke and Slattery claims. 00530870.3 4 No. 08-3051 Civil Term COUNT I - BREACH OF CONTRACT 13. The responses to Paragraphs One (1) through Twelve (12) are hereby incorporated by reference as though fully set forth herein. 14. Admitted in part, denied in part. It is admitted that the parties entered into a verbal contract for the replacement of certain jewelry items. It is denied that this contract was limited to jewelry items that were stolen, as McPherson & Co. also did work that related to other types of losses. 15. Denied as stated. It is admitted that the parties entered into a verbal contract, but it is denied that Nationwide only agreed to pay McPherson & Co. to the extent that it was able to find or create replacement jewelry to the satisfaction of Nationwide's customers. To the contrary, on the two claims at issue here Nationwide and McPherson & Co. had an agreement where McPherson & Co. would be paid for the McPherson & Co. expenses. 16. Admitted in part, denied in part. It is admitted that Nationwide made the stated payments. Nationwide's characterization of the terms of the contract is a legal conclusion, and, consequently, the averment relating to "satisfactory performance" is denied. To the extent the averment is deemed factual, McPherson & Co. asserts that it performed satisfactorily under the terms of its verbal agreement with Nationwide and made a good faith effort to supply appropriate substitute jewelry to the Nationwide 00530870.3 5 No. 08-3051 Civil Term insureds. 17. Admitted in part, denied in part. It is admitted that McPherson & Co. never gave the ring to Ms. Slattery at the request of Nationwide. McPherson & Co. has no knowledge as to why Ms. Slattery or Nationwide, or both, did not want McPherson & Co. to deliver the ring, so that averment is denied. By way of further answer, per the oral agreement between the parties, McPherson & Co. stands ready to return the replacement jewelry along with a refund of the difference between the McPherson & Co. expenses and the amount paid by Nationwide to McPherson & Co. 18. Admitted in part, denied in part. It is admitted that Ms. Clarke never received replacement jewelry items from McPherson and Co. These items were not delivered at the request of Nationwide. McPherson and Co. has no knowledge as to why Ms. Clark and/or Nationwide did not want McPherson & Co. to deliver the various jewelry pieces, so that averment is denied. By way of further answer, per the oral agreement between the parties, McPherson & Co. stands ready to return the replacement jewelry along with a refund of the difference between the McPherson & Co. expenses and the amount paid by Nationwide to McPherson & Co. 19. Denied. The averments in Paragraph Nineteen (19) are legal conclusions to which no response is required, and strict proof thereof is demanded. To the extent the averments are deemed factual, they are denied. 00530870.3 6 No. 08-3051 Civil Term WHEREFORE, Defendant, McPherson & Co., respectfully requests that Nationwide's claim for $12,483.30 be denied, and that Defendant be granted the relief requested in either of its counterclaims, as deemed appropriate by the Court. COUNT II -UNJUST ENRICHMENT 20. The responses to Paragraphs One (1) through Nineteen (19) are hereby incorporated by reference as though fully set forth herein. 21. Admitted in part, denied in part. It is admitted that McPherson & Co. received the stated payments from Nationwide. By way of further answer, per the oral agreement between the parties, McPherson & Co. stands ready to return the replacement jewelry along with a refund of the difference between the McPherson & Co. expenses and the amount paid by Nationwide to McPherson & Co. The allegation that McPherson & Co. was unjustly enriched is a legal conclusion to which no response is required. WHEREFORE, Defendant, McPherson & Co., respectfully requests that Nationwide's claim for $12,483.30 be denied, and that Defendant be granted the relief requested in either of its counterclaims, as deemed appropriate by the Court. COUNT III - CONVERSION 22. The responses to Paragraphs One (1) through Twenty-One (21) are hereby incorporated by reference as though fully set forth herein. 23. Denied. The averments in Paragraph Twenty-three (23) are legal 00530870.3 7 No. 08-3051 Civil Term conclusions to which no response is required. By way of further answer, per the oral agreement between Mr. Grauls and McPherson & Co., payment to McPherson & Co. was not made contingent upon Nationwide's insureds accepting the jewelry which served as the underlying basis of the claims. 24. Denied. The averments in Paragraph Twenty-four (24) are legal conclusions to which no response is required. By way of further answer, per the oral agreement between the parties, McPherson & Co. stands ready to return the replacement jewelry along with a refund of the difference between the McPherson & Co. expenses and the amount paid by Nationwide to McPherson & Co. 25. Admitted in part, denied in part. It is admitted that McPherson & Co. refuses to return the amount of the checks issued by Nationwide in their entirety without setoff for expenses. By way of further answer, per the oral agreement between the parties, McPherson & Co. stands ready to return the replacement jewelry along with a refund of the difference between the McPherson & Co. expenses and the amount paid by Nationwide to McPherson & Co. 26. Denied. The averment in Paragraph Twenty-six (26) is a legal conclusion to which no response is required. 27. Denied. The averment in Paragraph Twenty (27) is a legal conclusion to which no response is required. 00530870.3 8 No. 08-3051 Civil Term WHEREFORE, Defendant, McPherson & Co., respectfully requests that Nationwide's claim for $12,483.30 be denied, and that Defendant be granted the relief requested in either of its counterclaims, as deemed appropriate by the Court. COUNT IV - FRAUDULENT CONVERSION 28. The responses to Paragraphs One (1) through Twenty-Seven (27) are hereby incorporated by reference as though fully set forth herein. 29. Denied. The averment in Paragraph Twenty-seven (27) is a legal conclusion to which no response is required. To the extent the averment is deemed factual, it is denied that any conversion occurred, or that the conversion was knowing or fraudulent. It is likewise denied that Nationwide is entitled to interest or punitive damages. WHEREFORE, Defendant, McPherson & Co., respectfully requests that Nationwide's claim for $12,483.30 be denied, and that Defendant be granted the relief requested in either of its counterclaims, as deemed appropriate by the Court. COUNT V - WRONGFUL APPROPRIATION 30. The responses to Paragraphs One (1) through Thirty (30) are hereby incorporated by reference as though fully set forth herein. 31. Denied as stated. Payment by Nationwide was not contingent on the acceptance of the replacement jewelry by Nationwide. By way of further answer, 00530870.3 9 No. 08-3051 Civil Term McPherson & Co. was aware that it had a good faith obligation to try to find like quality jewelry to provide to Nationwide's insureds. McPherson & Co. meet its obligation. 32. Denied. It is denied that McPherson & Co. "failed in this endeavor." By way of further answer, per the oral agreement between the parties, McPherson & Co. stands ready to return the replacement jewelry along with a refund of the difference between the McPherson & Co. expenses and the amount paid by Nationwide to McPherson & Co. The averment that McPherson & Co. wrongfully misappropriated funds is a legal conclusion to which no response is required. WHEREFORE, Defendant, McPherson & Co., respectfully requests that Nationwide's claim for $12,483.30 be denied, and that Defendant be granted the relief requested in either of its counterclaims, as deemed appropriate by the Court. NEW MATTER 33. The responses to Paragraphs One (1) through Thirty-two (32) are hereby incorporated by reference as though fully set forth herein. 34. Nationwide has failed to state a claim upon which relief may be granted. 35. Nationwide's claim against McPherson & Co is barred by the oral agreement between Mr. Grauls and McPherson & Co. 36. Nationwide's claims are barred by the doctrine of estoppel. 37. Nationwide's claims are barred by the economic loss doctrine. 00530870.3 10 No. 08-3051 Civil Term 38. Nationwide's claims are barred by the gist of the action doctrine. 39. Nationwide's claims may be barred in whole or in part by the doctrine of accord and satisfaction. 40. Nationwide's claims may be barred in whole or in part by the doctrine of release. 41. Nationwide's claims may be barred in whole or in part by the doctrine of waiver. 42. Nationwide's claims may be barred by the statute of frauds. 43. Nationwide is unable to establish evidence sufficient to support their demand for the imposition of punitive damages against McPherson & Co., and the demand for punitive damages must be dismissed as a matter of law. 44. Nationwide is unable to establish facts sufficient to support its claim for fraudulent conversion set forth in Count IV of the Complaint against McPherson &Co., and McPherson and Co. is entitled to judgment in its favor on that Count as a matter of law. 45. To the extent that Nationwide has suffered any economic loss, such loss has been occasioned by its own conduct or the conduct of third parties, specifically its insureds, Theresa Slattery and Emily Clark, and not that of McPherson & Co. 46. No act or omission of McPherson & Co. was the actual or legal cause of 00530870.3 11 No. 08-3051 Civil Term any harm which may have been suffered by Nationwide, such harm being specifically denied. 47. At all times pertinent to this Complaint, the primary point of contact for McPherson & Co. was Steve Grauls at Nationwide. 48. At all times pertinent to this Complaint, Mr. Grauls was an employee, representative and/or agent of Nationwide. 49. At all times pertinent to this Complaint, Mr. Grauls had the actual or apparent authority to bind Nationwide. 50. At all times pertinent to this Complaint, McPherson & Co. acted appropriately, and pursuant to Nationwide's direction, when McPherson & Co. incurred the McPherson & Co. expenses related to the claims submitted by Ms. Slattery and Ms. Clarke. 51. McPherson & Co. incurred the McPherson & Co. expenses in good faith and in furtherance of the oral contract between Nationwide and McPherson & Co. to provide goods and services to two Nationwide insureds, Ms. Slattery and Ms. Clarke. 52. After discussing the claims that are the subject of this transaction with Mr. Grauls, McPherson & Co. entered into an agreement with Mr. Grauls whereby McPherson & Co. would return the jewelry items purchased, as well as an invoice for time and travel expenses, and, if there was a shortfall between the McPherson & Co. 00530870.3 12 No. 08-3051 Civil Term expenses and the amount Nationwide paid to McPherson & Co., McPherson & Co. would pay Nationwide the difference via check. 53. McPherson & Co. told Mr. Grauls the anticipated shortfall would be between $600-$700, and Mr. Grauls accepted those terms. 54. McPherson & Co. stands ready to honor the oral agreement between Mr. Grauls and McPherson & Co. 55. McPherson & Co. would not have incurred the McPherson & Co. expenses related to the Clarke and Slattery claims absent the request of Nationwide. 56. If Nationwide were to receive the entire $12,483.30, Nationwide would be unjustly enriched in light of the McPherson & Co. expenses incurred that specifically related to the claims of Ms. Slattery and Ms. Clarke. 57. McPherson & Co. is entitled to a setoff for all McPherson & Co. expenses incurred while attempting to satisfy the claims of Nationwide's insureds per Nationwide's request. WHEREFORE, Defendant, McPherson & Co., respectfully requests that Nationwide's claim for $12,483.30 be denied, and that Defendant be granted the relief requested in either of its counterclaims, as deemed appropriate by the Court. 00530870.3 13 No. 08-3051 Civil Term COUNTERCLAIM COUNT I - BREACH OF CONTRACT McPherson & Co. v. Nationwide Mutual Fire Insurance Company 58. The responses to Paragraphs One (1) through Fifty-seven (57) are hereby incorporated by reference as though fully set forth herein. 59. Nationwide, through its agent Steve Grauls, orally agreed to resolve the claims that are the subject of this litigation by returning the replacement jewelry along with a refund of the difference between the McPherson & Co. expenses and the amount paid by Nationwide to McPherson & Co. 60. Mr. Grauls was advised by McPherson & Co. that the replacement jewelry, plus approximately $600-$700 (subject to confirmation), would be returned to Nationwide to resolve the Clarke and Slattery claims. 61. Mr. Grauls orally agreed to the resolution described in Paragraph Sixty (60). 62. At all times pertinent to this Complaint, Mr. Grauls had the actual or apparent authority to bind Nationwide. 63. After reviewing the calculations, pursuant to the oral agreement between the parties McPherson & Co. owes Nationwide approximately $40 for the Clarke claim. 64. After reviewing the calculations, pursuant to the oral agreement between the parties McPherson & Co. owes Nationwide approximately $577 for the Slattery claim. 00530870.3 14 No. 08-3051 Civil Term 65. McPherson & Co. stands ready to comply with the terms of the oral agreement between the parties, but to date Nationwide has failed to honor the terms of the oral agreement. WHEREFORE, Defendant, McPherson & Co., respectfully requests that Nationwide's claim for $12,483.30 be denied, and that Defendant be granted the relief requested in either of its counterclaims, as deemed appropriate by the Court. COUNT II - UNJUST ENRICHMENT (ALTERNATIVE TO COUNT!) McPherson & Co. v. Nationwide Mutual Fire Insurance Company 66. The responses to Paragraphs One (1) through Sixty-five (65) are hereby incorporated by reference as though fully set forth herein. 67. McPherson & Co. has incurred significant expenses, in the form of the time of its employees and the cost of replacement jewelry and travel expenses, to attempt to resolve the claims by Nationwide's insureds 68. The McPherson & Co. expenses were incurred based upon Nationwide's specific request. 69. No McPherson & Co. expenses were incurred after Nationwide instructed McPherson & Co. to cease working on the claims of Ms. Clarke and Ms. Slattery. 70. The McPherson & Co. expenses were reasonable and done in a good faith attempt to resolve the claims of Ms. Clarke and Ms. Slattery. 00530870.3 15 No. 08-3051 Civil Term 71. Because of the difficulty in attempting to resolve these claims, the McPherson & Co. expenses actually exceeded the amount Nationwide paid McPherson & Co. for the claims. 72. McPherson & Co. is entitled to recover from Nationwide any expenses incurred on behalf of Nationwide's insureds that exceed the amount paid by Nationwide to McPherson & Co. to date. WHEREFORE, Defendant, McPherson & Co., respectfully requests that Nationwide's claim for $12,483.30 be denied, and that Defendant be granted the relief requested in either of its counterclaims, as deemed appropriate by the Court. HARTMAN UNDERHILL & BRUBAKER LLP By: q1LIJ. 0 AUSA Jeffry ue et, Esquire Attorney I.D. No. 80170 Attorneys for Defendant 00530870.3 16 No. 05-4541 VERIFICATION I hereby verify that I am the President of McPherson & Co; that as such I am authorized to make this verification; and that the information set forth in the foregoing document is true and correct to the best of my knowledge, information and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. ?r McPherson & Co. Date: b B r McPherson, President No. 08-3051 Civil Term CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving the foregoing upon the person(s) and in the manner indicated below: Service via e-mail and first class mail, addressed as follows: JoAnne E. Kinzel, Esquire Law Office of Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 (Attorney for Plaintiff) HARTMAN UNDERHILL & BRUBAKER LLP Date: 11110) By: 0 J)f i IQ P &_j9 Je e . O llet, Esquire Attorney I.D. No. 80170 Attorneys for Defendant, McPherson & Co. 00530870.3 r-w .? C1 d T 1 08HB-00042 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Fire Insurance Company a/s/o rase No.: 08-3051 Civil Term Emily C. Clarke and Theresa Slattery, Plaintiff Vs. TION McPherson & Co., Defendant PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND COUNTER CLAIM 33. In response to paragraph 33 of Defendant's New Matter, Nationwide incorporates herein by reference its Complaint against Defendant. By way of further Answer, Nationwide denies each and every paragraph in which Defendant asserts that there was an oral agreement for settlement between the parties. On the contrary, Nationwide attempted to amicably resolve this matter with Defendant. However, consistent with the manner in which he dealt with Nationwide's policyholders, Mr. McPherson failed and refused to return Nationwide's calls or provide the information requested by Nationwide which was needed to attempt to effect an amicable resolution of this matter. 34. The allegations in paragraph 34 of Defendant's New Matter are conclusions of law to which no response is required. 35. The allegations in paragraph 35 of Defendant's New Matter are specifically denied. On the contrary, there was no oral agreement as referenced therein. 36.42. The allegations in paragraphs 36 through 42 of Defendant's New Matter are conclusions of law to which no response is required. To the extent that a response is deemed necessary, said allegations are specifically and generally denied. 43.44. The allegations in paragraph 43 and 44 of Defendant's New Matter are specifically and generally denied. By way of further answer, the parties have not yet engaged in discovery to address these issues and discovery is expected to produce additional evidence to support Nationwide's claims. 45. The allegations in paragraph 45 of Defendant's New Matter are specifically denied. On the contrary, it was the dilatory conduct of Defendant which led to the policyholder'; selection of another, more professional vendor to replace the lost jewelry pieces after which Defendant kept and converted not only the jewelry pieces Nationwide paid for, but also the money paid by Nationwide to Defendant for these jewelry items. 46. The allegations in paragraph 46 of Defendant's New Matter are specifically denied. On the contrary, after Defendant was fired by Nationwide's insured because of his dilatory response to her claims, Defendant kept all of the jewelry pieces as well as the money paid by Nationwide to him. Such conduct was the cause in fact of Nationwide's loss. 47. Upon information and belief, paragraph 47 of Defendant's New Matter is admitted. 48. Paragraph 48 of Defendant's New Matter is admitted. 49. Paragraph 49 of Defendant's New Matter is a conclusion of law to which no response is required. 50. The allegations in paragraph 50 of Defendant's New Matter are specifically denied. On the contrary, Defendant did not act appropriately to replace jewelry items stolen from Nationwide's insureds, which was the reason he was fired by Nationwide's policyholder. 51. The allegations in paragraph 51 of Defendant's New Matter are specifically denied. On the contrary, while Nationwide asked Defendant to work with Nationwide's policyholders to replace stolen jewelry items, Defendant did not provide the goods and services desired by Nationwide's policyholders, which is why they chose to work with another vendor. Having been fired for his failure to provide the appropriate replacement items for Nationwide's policyholders, Mr. McPherson failed to return the money which had been advanced to him by Nationwide. Instead, he kept not only the money, but also the jewelry items. Thereby unjustly enriching himself and converting property which did not belong to him. 52. - 53. The allegations in paragraphs 52 and 53 of Defendant's New Matter are specifically and generally denied. On the contrary, no such agreement existed between the parties. Far from trying to work out a reasonable settlement with Nationwide, Defendant refused to return Nationwide's numerous and repeated phone calls and, instead, kept all of the jewelry items which had been rejected by Nationwide's policyholders and also kept the money which Nationwide had advanced for payment of said items. 54. The allegations in paragraph 54 of the Defendant's New Matter are specifically denied to the extent they allege an oral agreement between Nationwide and Defendant. On the contrary, no such agreement ever existed. By way of further answer, Defendant has continuously refused to provide Nationwide with documentation regarding the cost of the jewelry items which Defendant intended to use to replace the items stolen from Nationwide's policyholders. 55. The allegations in paragraph 55 of Defendant's New Matter are specifically denied. On the contrary, had Defendant performed his services in a professional and appropriate manner, he would have concluded the transactions with Nationwide's policyholders as his replacement was able to accomplish. 56. The allegations in paragraph 56 of Defendant's New Matter are specifically denied. On the contrary, Defendant performed no service which inured to the benefit of Nationwide or its policyholders. Accordingly, he has failed to earn whatever remuneration he would have received had he replaced the stolen jewelry items in a timely, appropriate and professional manner. 57. The allegations in paragraph 57 of the Complaint are specifically denied and Plaintiff incorporates herein by reference paragraph 56 above as though set forth at length. WHEREFORE, Plaintiff respectfully asks this Court to enter Judgment in its behalf in amount of $12,483.30. COUNTER CLAIM COUNT I - BREACH OF CONTRACT 58. In response to paragraph 58 of Defendant's Counterclaim, Plaintiff incorporates herein by reference its Complaint, as well as paragraphs 33 through 58 above as though set forth at length. 59.-61. The allegations in paragraphs 59 through 61 of Defendant's Counterclaim are specifically denied. On the contrary, no such agreement was ever reached between Plaintiff and Defendant. On the contrary, after Defendant was fired by Nationwide's policyholder for his failure to replace the stolen jewelry items in a timely, appropriate and professional manner, Nationwide requested that Defendant return the $12,483.30 advanced to him by Nationwide. In response thereto, Defendant simply refused to return Nationwide's phone calls to resolve this matter, just as he has done since the inception of the within lawsuit. 62. Paragraph 62 of Defendant's Counterclaim is a conclusion of law to which no response is required. To the extent a response is deemed necessary, Defendant denies that there was any settlement agreement between Plaintiff and Defendant which was authorized by Mr. Grauls on behalf of Nationwide. 63. - 64. The allegations in paragraphs 63 and 64 of Defendant's Counterclaim are specifically denied. On the contrary, the amount owed by Defendant to Nationwide is $12,483.30. By way of further response, Nationwide has requested on numerous occasions that Defendant provide him with documents to prove the cost and expense of each jewelry item which he continues to retain in his possession. However, Defendant has failed and refused to produce said documentation. Accordingly, Nationwide is without knowledge or information sufficient to form a belief as to the truth of any allegation on behalf of the Defendant as to the individual or total cost of the jewelry items he attempted to replace for Nationwide's policyholders. 65. In response to paragraph 65 of Defendant's Counterclaim, Nationwide specifically denies that there was any oral or other agreement between the parties as set forth in Defendant's Counterclaim. WHEREFORE, Nationwide respectfully requests this Court to enter an award in its favor in the amount of $12,483.30. COUNTER CLAIM COUNT II - UNJUST ENRICHMENT (ALTERNATIVE TO COUNT I) 66. In response to paragraph 66 of Defendant's Counterclaim, Plaintiff incorporates herein by reference its Complaint, as well as paragraphs 33 through 65 above as though set forth at length. 67. - 71. After reasonable investigation, Nationwide is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 67 through 71 of Defendant's Counterclaim. Therefore, they are denied and strict proof is demanded. By way of further answer, any expenses incurred by the Defendant were the result of his own failure to timely, appropriately and professionally service Nationwide's policyholders to replace stolen jewelry items. Accordingly, any such costs or expenses are not the responsibility of Nationwide. j By way of further answer, despite repeated requests, Defendant has failed to provide any proof I of the nature or amount of such expenses or the actual costs of the jewelry items he obtained and proposed to convey to Nationwide's policyholders. Any difficulties encountered by Defendant I in resolving the claims with Nationwide's policyholders was due to his own poor business practices and his lack of professionalism. 72. The allegations in paragraph 72 of Defendant's Counterclaim are specifically denied. On the contrary, Defendant has now kept for a period of over one year the $12,483.30 which was advanced to him by Nationwide to obtain replacement jewelry items for Nationwide's policyholders. Not only has Mr. McPherson retained the money paid by Nationwide, he has also kept the jewelry items which were not acceptable to Nationwide's policyholders. This represents a gross windfall to the Defendant, conversion of Nationwide's property and unjust enrichment to the Defendant. WHEREFORE, Plaintiff respectfully requests this Court to enter Judgment in its favor in the amount of $12,483.30. Respectfully submitted, LAW OEF_ICE OF SNYDER & DORER By: ' JoAnne E'onzel, Esquire Identifica nI i No. 55453 Attorney for Plaintiff Date: December 8. 2008 108HB-00042 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Fire Insurance Company alslo Case No.: 08-3051 Civil Term Emily C. Clarke and Theresa Slattery, Plaintiff vs. BITRATION McPherson & Co., Defendant CERTIFICATE OF SERVICE JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Plaintiff and that she caused a true and correct copy of the attached Matter and Counter Claim to be served by regular first class mail upon: Jeffrey P. Ouellet, Esquire Hartman, Underhill & Brubaker, LLP 221 East Chestnut Street Lancaster, PA 17602-2782 Date: December 8, 2008 JoA mzel, Es Attorney or Plaintiff ? z ? ? -rt ?,-? ??-> r ? r ?"'i " ?'t"S ?'. G" 3 w,,.. i" .r.- ,-m,Y t ? l ?-t't ? f`J ?: ? ? ,' ?„? r -? .. ?,s 08HB-00042 (08-008670) LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 600 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Fire Insurance Company No.: 08-3051 Civil Term a/s/o Emily C. Clarke and Theresa Slattery, Plaintiff vs. McPherson & Co., Defendant BITRATION PRAECIPE TO DISCONTINUE AND END TO THE PROTHONOTARY: Please mark the above-captioned case discontinued and ended. FFICE OF SNYDER & DORER Date: By: JoAn a E. inzel, E%quire 214 %n e Avenue Suite 00 Camp Hill, PA 17011 Telephone No. (717) 731-0988 Attorney for Plaintiff Court I.D. 55453 08HB-00042 (08-008670) LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 600 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Nationwide Mutual Fire Insurance Company a/s/o Case No.: 08-3051 Civil Term Emily C. Clarke and Theresa Slattery, Plaintiff vs. I TRATION McPherson & Co., Defendant CERTIFICATE OF SERVICE JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Plaintiff and that she caused a true and correct copy of the attached Praecine to Discontinue and End to be served by regular first class mail upon: Jeffrey P. Ouellet, Esquire Hartman, Underhill & Brubaker, LLP 221 East Chestnut Street Lancaster, PA 17602-2782 Date: Vvu OF THE 2009 AUG -4; Fl'i I= 140 N'SYLVAN