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HomeMy WebLinkAbout08-4006a COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3id Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, as subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 Plaintiff, V. NIKOLAOS C. SEITZ, 10 Poplar St. Wormleysburg, PA 17043 Defendant. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION CIVIL ACTION NO.: ??. ?Q Q (D JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Com- plaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY 1 OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparencencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 800-990-9108 2 COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3Td Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, as subrogee of Diana R. Loyer 9800 Fredericksburg Rd. : San Antonio, TX 78288 Plaintiff, V. NIKOLAOS C. SEITZ, 10 Poplar St. Wormleysburg, PA 17043 : Defendant. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION /,? G CIVIL ACTION NO.: OF` IM JURY TRIAL DEMANDED COMPLAINT Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, by and through its counsel, hereby demands judgment against Nikolas Seitz and, upon information and belief, complains against defendant as follows: PARTIES 1. Plaintiff, USAA Casualty Insurance Company (hereinafter "USAA' ), is a corporation organized under the laws of the State of Texas, with a principal place of business located at 9800 Fredericksburg Road, San Antonio, TX 78288. 2. At all times material hereto, Plaintiff USAA was duly authorized to issue policies of insurance within the Commonwealth of Pennsylvania. 3. Defendant, Nikolaos C. Seitz, is, upon information and belief, a resident of Pennsylvania, with a principal residence located at 10 Poplar Street, Wormleysburg, PA. JURISDICTION AND VENUE 4. The matter in controversy exceeds $50,000.00, the cause of action arose in Cumberland County, and the matter is otherwise within the jurisdiction of this Court. FACTUAL ALLEGATIONS 5. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 6. On or around January 13, 2008, Plaintiff's insured, Diana R. Loyer, owned and resided at property located at 6 Poplar Street, Wormleysburg, PA 17043 (hereinafter "the subject property"). 7. At all times material hereto, Plaintiff insured the subject property of Diana R. Loyer and other contents and property located therein. Upon information and belief, on or around January 13, 2008, Defendant owned and resided at 10 Poplar Street, Wormleysburg, PA 17043, which is situated adjacent to and/or near the subject property (hereinafter "the adjacent property"). 9. On or around January 13, 2008, Defendant allowed various residents, tenants, invitees, guests, servants, agents, workmen and/or employees to use cigarettes and/or other smoking materials at the adjacent property. 10. On or around January 13, 2008, there was a fire at the adjacent property (hereinafter "the fire"). 2 11. On or around January 13, 2008, Defendant learned of and/or was notified of the fire at the adjacent property before the fire and/or smoke from the fire spread to nearby and adjacent homes and structures, including the subject property of Plaintiff's insured. 12. On or on January 13, 2008, after Defendant learned of and/or was notified of the fire at the adjacent property, the fire and smoke from the fire spread from the adjacent property to nearby and adjacent homes and structures, including the subject premises of Plaintiff's insured. 13. The fire at the adjacent property spread to and caused damage and destruction to the subject property of Plaintiff's insured, which caused Plaintiff's insured to sustain damage to its property and contents. 14. Pursuant to the terms of the above-referenced insurance policy with its insured, Plaintiff USAA has made payments to its insured in the amount of One Hundred Thirty Seven Thousand Two Hundred and Sixty Nine Dollars and Thirty Four Cents ($137,269.34) and expects to make additional payments to its insured for the damages sustained as a result of the fire. 15. In accordance with common law principles of legal and equitable subrogation, Plaintiff USAA is subrogated to the rights of its insured with respect to the damages compensable under the policy. COUNT I -- NEGLIGENCE 16. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 17. The fire and resulting damages to Plaintiff's insured were the direct and proximate result of the negligence, carelessness, recklessness and gross negligence of Defendant and/or his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees in: (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; (c) causing the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to ensure that his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees at the adjacent property properly used, extinguished, and/or disposed of cigarettes and other smoking materials; (f) allowing and permitting his residents, tenants, invitees, guests, servants, agents, workmen and/or employees to improperly use, extinguish, and/or dispose of cigarettes and other smoking materials at the subject premises; (g) failing to properly warn, train, oversee and supervise his residents, tenants, invitees, guests, servants, agents, workmen and/or employees on the proper use, disposal and extinguishment of cigarettes and other smoking materials so as to avoid causing a fire; (h) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (i) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (j) failing to properly inspect and examine the adjacent property for the existence of a fire after receiving notice of the fire; (k) failing to properly extinguish the fire after its discovery; (1) failing to detect and extinguish the fire; (m) failing to take proper and adequate steps to notify the local Fire Department and/or local authorities of the existence of the fire at the 4 adjacent property after its discovery and/or after receiving notice of the existence of the fire from his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees; and (n) otherwise failing to use due care under the circumstances. 18. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, gross negligence, and/or negligent acts and/or omissions of Defendant, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's insured to incur other damages resulting from the fire. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas Seitz, in an amount of One Hundred Thirty Seven Thousand Two Hundred and Sixty Nine Dollars and Thirty Four Cents ($137,269.34), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT II -PRIVATE NUISANCE 19. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 20. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 21. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 22. As the source of the private nuisance, Defendant is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas Seitz, in an amount of One Hundred Thirty Seven Thousand Two Hundred and Sixty Nine Dollars and Thirty Four Cents ($137,269.34), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT III -- TRESPASS 23. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 24. Plaintiff's insured did not consent to the spread of the fire and smoke from the fire to its subject property. 25. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant unlawfully trespassed upon Plaintiff's insured's property. 26. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas Seitz, in an amount of One Hundred Thirty Seven Thousand Two Hundred and Sixty Nine Dollars and Thirty Four Cents ($137,269.34), together with prejudgment interest, damages 6 for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. Respectfully submitted, COZ ANDS ONNOR SEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3rd Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 /C5 Attorneys for Plaintiff Dated: 7 VERIFICATION Donald Iverson, a duly authorized representative of USAA Casualty Insurance Company, hereby verifies that the statements made in the foregoing Complaint are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements in said Complaint are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsifications to authorities. Verified this O/ day ofyy e- 2008 8 na M 't a', ' -v Q tv Om n 0 N r s Q fl 0 s 0 SHERIFF'S RETURN - REGULAR CASE NO: 2008-04006 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND USAA CASUALTY INSURANCE CO VS SEITZ NIKOLAS C STEVE BENDER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SEITZ NIKOLAOS C the DEFENDANT , at 0010:55 HOURS, on the 2nd day of August , 2008 at 5950 HUNTINGDON COMMONS ENOLA, PA 17025 by handing to NIKOLAOS SEITZ DEFENDANT a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Additional Comments ADDRESS PROVIDED OF 10 POPLAR STREET, WORMLEYSBURG, IS CONDEMNED. Sheriff's Costs: Docketing Service Affidavit Surcharge Postage 'rlDS?a s ?.. So Answers: 18.00 15.00 e 00 10.00 R. Thomas Kline .42 43.42 08/04/2008 COZEN O'CONNOR Sworn and Subscibed to before me this By: day Deputy heriff of A. D. LAW OFFICES WILLIAM J. FERREN & ASSOCIATES BY: PATRICK J. MORAN, ESQUIRE ATTORNEY ID. NO. 61580 TEN SENTRY PARKWAY, SUITE 301 BLUE BELL, PA 19422 (215) 274-1701 Attorney for Defendant USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer V. NIKOLAOS C. SEITZ COURT OF COMMON YLhAS CUMBERLAND COUNTY yod uo NO. 08-49-96 ANSWER AND NEW MATTER OF DEFENDANT TO PLAINTIFF'S COMPLAINT Defendant, Nicholas C. Seitz, by and through its counsel, files this Answer with New Matter: PARTIES 1. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 1 of Plaintiffs Complaint and said allegation is denied. 2. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 2 of Plaintiff's Complaint and said allegation is denied. 3. Admitted. 4. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 4 of Plaintiff's Complaint and said allegation is denied. 5. Paragraph 5 is an incorporation paragraph to which no response is required. 6. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 6 of Plaintiff's Complaint and said allegation is denied. 7. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 7 of Plaintiff s Complaint and said allegation is denied. 8. Admitted. 9. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegation contained in paragraph 9 of Plaintiff s Complaint and said allegation is denied 10. Denied in part; admitted in part. There was a fire on January 13, 2008 that consumed Mr. Seitz's property. After reasonable investigation, defended is without knowledge or information as to whether the fire originated on his property. 11. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 11 of Plaintiffs Complaint and said allegation is denied. 12. Admitted in part; denied in part. Defendant learned there was a fire on January 13, 2008 when he was at his premises. It is not been determined the origin and cause of fire; therefore, after reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 12 of Plaintiffs Complaint and said allegation is denied. 13. Admitted in part; denied in part. It is admitted that the fire on January 13, 2008 caused 2 some damage to the Plaintiff's property. After reasonable investigation, defendant is without knowledge or information that there was damage to the content at the Plaintiff's property. 14. Denied After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 14 of Plaintiff's Complaint and said allegation is denied. 15. Denied. The averment in paragraph 15 of Plaintiff's complaint is a conclusion of law to which no response is required. COUNT I - NEGLIGENCE 16. Paragraph 16 is an incorporation paragraph to which no response is required 17. Paragraph 17 (a) - (n) inclusive. Denied. It is denied that defendant was negligent, careless, reckless, and grossly negligent and/or committed any unlawful act. The identical denials are made to the defendant any residents, tenants, invitees, guests, servants, agents, workman and/or employees. Each and every subpart of paragraph 17 is separately and collectively denied 18. The averment in paragraph 18 is denied. The defendant was not the direct or proximate cause of the aforesaid negligence, carelessness, recklessness, gross negligence and/or negligent acts. The defendant was neither negligent, nor were any of the residents, tenants, invitees, guests, servants, agents workmen and/or employees negligent in any manner or the cause of the fire. WHEREFORE, defendant, Nicholas Seitz, respectfully requests judgment be entered in his favor and against plaintiff on the cause of action asserted in count one of plaintiffs complaint COUNT II - PRIVATE NUISANCE 19. Paragraph 19 is an incorporation paragraph to which no response is required. 20. Denied. Paragraph 20 is a conclusion of law to which no response is required. 21. Denied. Paragraph 21 of plaintiff's Complaint is a conclusion of law to which no response is required. 22. Denied. Paragraph 22 of plaintiff's Complaint is a conclusion of law to which no response is required. WHEREFORE, answering defendant demands judgment in its favor and against the plaintiff. COUNT III - TRESPASS 23. Paragraph 23 is an incorporation paragraph to which no response is required. 24. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein, and same are denied with strict proof demanded at the time of trial. 25. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein, and same are denied with strict proof demanded at the time of trial. 26. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein, and same are denied with strict proof demanded at the time of trial. WHEREFORE, answering defendant demands judgment in its favor and against the plaintiff. 4 NEW MATTER 27. The plaintiff's claims are barred in whole or in part by the provisions of the Pennsylvania Comparative Negligence Act. 28. The claims of the plaintiff are barred in whole or in part by the applicable statute of limitations. 29. The claims of the plaintiff are barred in whole or in part by the doctrine of assumption of the risk and/or comparative negligence. 30. The complaint of the plaintiff falls to state a cause of action upon which relief may be granted against the answering defendant. 31. Answering defendant specifically denies any negligence, carelessness or failure in any duties allegedly owed to the plaintiff on its part. 32. If the plaintiff sustained any injuries/damages as alleged in the complaint, the facts being specifically denied by the answering defendant, those injuries/damages were caused by the acts or omissions of persons other than the answering defendant over whom/which the answering defendant had no control or right of control. 33. The claims of the plaintiff are barred in whole or in part or limited pursuant to any agreements entered into by the parties. WHEREFORE, answering defendant demands judgment in its favor and against the plaintiff. WILLIAM J. FERREN & ASSOCIATES BY P"9, Patrick J oran, Esquire Attorney for Defendant VERIFICATION I, Patrick J. Moran, Esquire, attorney for plaintiff, verify that the statements made in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Patrick J. Moran, Esquire Dated: December 4, 2008 k? r CX) _ " LAW OFFICES WILLIAM J. FERREN & ASSOCIATES BY: PATRICK J. MORAN, ESQUIRE ATTORNEY ID. NO. 61580 TEN SENTRY PARKWAY, SUITE 301 BLUE BELL, PA 19422 (215) 2744701 USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer V. NIKOLAOS C. SEITZ Attorney for Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-40-06 OSy-y00(a STIPULATION OF COUNSEL Plaintiff, USAA Casualty Insurance Company, a/s/o Diana R. Loyer and their counsel, Joseph F. Rich, Esquire and Patrick J. Moran, Esquire, counsel for defendant, Nikolaos C. Seitz, agree that the allegation of gross negligence shall be removed from paragraphs 17 and 18 of plaintiff's Complaint. COZEN O'CONNOR By Joseph F. Rich, Esquire Attorney for Plaintiff WILLIAM J. FERREN & ASSOCIATES By - Patrick J. M ,Esquire Attorney for Defendant C> ^"? ?, C±7 F'F'? - _, , i ? ?j .. -? ........ .. }' '?i nF ?.? "" COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3rd Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, as subrogee of Diana R. Loyer Plaintiff V. NIKOLAOS C. SEITZ, Defendant. CIVIL DIVISION Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION NO.: 08-4006 JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER As and for its Reply to the New Matter of Defendant, Nikolaos C. Seitz, Plaintiff, USAA Casualty Insurance Company ("USAA"), states and alleges: REPLY TO NEW MATTER 27. The allegations set forth in this paragraph constitute conclusions of law to which no response is required. To the extent a response is required, it is specifically denied that plaintiff's claims are barred in whole or in part by the provisions of the Pennsylvania Comparative Negligence Act. 28. The allegations set forth in this paragraph constitute conclusions of law to which no response is required. To the extent a response is required, it is specifically denied that the Plaintiff's claims are barred in whole or in part by the applicable statute of limitations. 29. The allegations set forth in this paragraph constitute conclusions of law to which no response is required. To the extent a response is required, it is specifically denied that plaintiff's claims are barred in whole or in part by the doctrine of assumption of the risk and/or comparative negligence. 30. The allegations set forth in this paragraph constitute conclusions of law to which no response is required. To the extent a response is required, it is specifically denied that plaintiff's complaint fails to state a cause of action upon which relief may be granted against the answering defendant. 31. The allegations set forth in this paragraph constitute conclusions of law to which no response is required. To the extent a response if required, the allegations in this paragraph are specifically denied by plaintiff. 32. Denied. After reasonable investigation, Plaintiff is unable to form a belief as to the truth of these allegations and, therefore, they are denied and strict proof thereof is demanded at the time of trial. To the extent that the allegations contained in this paragraph of defendant's New Matter are not considered to be factual issues, the allegations are denied as conclusions of law to which no responses are required. 33. The allegations set forth in this paragraph constitute conclusions of law to which no response is required. To the extent a response is required, it is specifically denied that plaintiff's claims are barred in whole or in part or limited pursuant to any agreements entered into by the parties. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas Seitz, in an amount of One Hundred Thirty Seven Thousand Two Hundred and Sixty Nine 2 Dollars and Thirty Four Cents ($137,269.34), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. Respectfully submitted, COZEN AND O'CONNOR J EPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 he Atrium - 3`d Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 Dated: I IS I a -S / d Attorneys for Plaintiff S'7 3 VERIFICATION I, Joseph F. Rich, Esquire, hereby states that I am the attorney for plaintiff in the within action and I verify that the statements made in the foregoing Reply to New Matter of Defendant are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. F. Rich Dated: December 23, 2008 4 ?:: "? ?-,? ?? °?? ;? `f ?,;, i"?3 1, LAW OFFICES WILLIAM J. FERREN & ASSOCIATES BY: PATRICK J. MORAN, ESQUIRE ATTORNEY ID. NO. 61580 TEN SENTRY PARKWAY, SUITE 301 BLUE BELL, PA 19422 (215) 274-1701 Attorney for Defendant USAA Casualty Insurance Company, a/s/o Diana R. Loyer V. Nikolaos C. Seitz COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 2008-4006 Jury Trial Demanded Thomas Kiser V. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Civil Action - Law Nikolaos Seitz, et al. NO.: 2008-04832 Jury Trial Demanded Kathy M. Witters COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. NO.: 2009-4259 Nikolaos Seitz, Rebecca Krebs and Devin Brewer Jury Trial Demanded DEFENDANT, NIKOLAOS SEITZ MOTION TO CONSOLIDATE CASES FOR DISCOVERY AND TRIAL AND NOW COME defendant, Nikolaos Seitz, by and through his counsel, Patrick J. Moran, Esquire and file the foregoing Motion to Consolidate and in support thereof aver as follows: 1. All three cases arise from a fire which occurred on January 13, 2008 on Poplar Street, Wormleysburg, Pennsylvania 17043. 2. USAA Casualty Insurance Company filed a lawsuit in the Court of Common Pleas of Cumberland County, Civil Action No.: 2008-4006 as subrogee of Diana R. Loyer who owned property and resided at 6 Poplar Street, Wormlesburg, Pennsylvania 17043. 1 3. Thomas Kiser filed suit in the Court of Common Pleas of Cumberland County at Civil Action No.: 2008-04832. Mr. Kiser resided at 12 Poplar Street, Wormleysburg, Pennsylvania 17043. 4. Kathy M. Witters filed suit in the Court of Common Pleas of Cumberland County, Civil Action No.: 2009-4259. Ms. Witters owned property and resided at 8 Poplar Street, Wormleysburg, Pennsylvania 17043. Pennsylvania Rule of Civil Procedure 213(a) provides: In actions pending in a county which involve a common question of law or fact or which arise from the same transaction or occurrence the court on its own motion or on the motion of any party may order a joint hearing or trial of any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay. 6. All three actions involve the same claims, the same parties, the same witnesses and arise out of the same set of operative facts. 7. These cases should be consolidated for purposes of discovery and trial in order to avoid unnecessary costs to both the court and the parties and because all of the aforementioned Complaints involve questions of law and fact, and arise from the same transaction or occurrence. Rozonowski v. Penn Nat'l Mutual Casualty Ins. Co., 343 Pa. Super 7 (1985); Lohmiller v. Weidenbaugh, 302 Pa. Super 174 (1982). 8. The consolidation of these actions for discovery and trial will also avoid prejudice which could result from multiple hearings and inconsistent rulings. 9. The undersigned counsel has conferred with counsel for all three plaintiffs and there is no opposition to the instant Motion to Consolidate. WHEREFORE, the defendant, Thomas Kiser, respectfully requests that the above cases be consolidated for discovery and for trial. Respectfully submitted, Patrick J. M an, Esquire, Attorney for Defendant, Nikolaos Seitz Rt.GtJ 'f' `'' OA ONRY 2009 SEP 14 FM 2: 4a CUM6 y ! , ' J+ f f S°EP 5 2009 USAA Casualty Insurance Company, a/s/o Diana R. Loyer V. Nikolaos C. Seitz COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 2008-4006 1/ Jury Trial Demanded Thomas Kiser COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. Civil Action - Law Nikolaos Seitz, et al. NO.: 2008-04832 Jury Trial Demanded Kathy M. Witters COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. NO.: 2009-4259 Nikolaos Seitz, Rebecca Krebs and Devin Brewer Jury Trial Demanded ORDER AND NOW, this l&4L-,. day of S£? 2009, it is hereby ORDERED and DECREED that Defendants' Motion to Consolidate is GRANTED. It is further ORDERED and DECREED that the matters are consolidated for purposes of Discovery and Trial under the action docketed with this Court under Docket No. 2008-4006. BY THE COURT: S J. FILE OF , E 2009 SEP 16 Ali In: 0 6 CJ?r'?. k i??Jt Jib n /?f COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer Attorneys for Plaintiff Plaintiff V. NIKOLAOS C. SEITZ, Defendant. COURT OF COMMON PLEAS Cumberland County CIVIL ACTION NO.: 08-4006 (Consolidated Action) PLAINTIFF USAA CASUALTY INSURANCE COMPANY'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT Pursuant to Pennsylvania Rules of Civil Procedure 1033 and 2229(b), Plaintiff USAA Casualty Insurance Company ("USAA"), as subrogee of Diana R. Loyer, by counsel, hereby files its Motion for Leave to File an Amended Complaint (the proposed Amended Complaint is attached hereto as Exhibit "A"), and in support thereof avers as follows: On July 7, 2008, Plaintiff USAA Casualty Insurance Company (hereinafter "USAA") initiated this action in the Court of Common Pleas of Cumberland County against Defendant Nikolaos C. Seitz to recover damages from a fire and delayed notification of the fire that occurred at the defendant Seitz's property on January 13, 2008, which caused substantial damage to the property of Plaintiff USAA's insured, Diana R. Loyer. [See Plaintiff USAA's Complaint, attached hereto as Exhibit `B"]. 2 2. On September 15, 2009, Plaintiff USAA's action was consolidated with two other pending actions against Mr. Seitz and other defendants, Rebecca Krebs and Devon Brewer. [See Consolidation Order, attached hereto as Exhibit "C"]. The actions consolidated with Plaintiff USAA's action are captioned Thomas Kizer v. Nikoloas Seitz, Rebecca Krebs and Devin Bewer, and Kathy M. Witters v. Nikoloas Seitz, Rebecca Krebs and Devin Bewer. All three pending actions have been consolidated under Docket No..2008-4006. [See Exhibit "C"]. 3. Shortly after the consolidation, the parties took the deposition of Defendant Seitz on October 8, 2009 and the deposition of Trooper Eric Keebaugh of the Pennsylvania State Police on October 9, 2009. The testimony during these depositions suggested that Rebecca Krebs, Devon Brewer and/or Tyler Yenna may have been involved in cigarette smoking activities on the evening prior to the fire that may have caused or contributed to the fire at defendant Seitz's property. The testimony during these depositions also suggested that Ms. Krebs may have also allowed a delayed notification of the fire that contributed to its spread to Plaintiff's insured's property. Specifically, these depositions revealed that Rebecca Krebs and Devon Brewer were residing at Seitz's property in some capacity at relevant times concerning this fire and its spread and/or were present within his property during the evening prior to the fire and/or on the day of the fire. Mr. Seitz's deposition also suggested that although Tyler Yenna was not regularly residing at his property, Tyler Yenna was present on the second floor rear porch area of his property on the night before the fire, which is the location where the fire is believed to have originated by the collective plaintiffs in these consolidated actions. 4. Rebecca Krebs and Devon Brewer are named defendants in the actions brought by Mr. Kizer and Ms. Witters, which have been consolidated with Plaintiff USAA's action. Therefore, allowing Plaintiff to Amend its Complaint to add these persons as additional defendants will not prejudice defendant Seitz, as defendant Seitz has been on notice of these additional defendants. 5. Furthermore, Plaintiff is not seeking to add any additional or new causes or actions or counts against defendant Seitz. The only change to the allegations pertaining to defendant Seitz is that Plaintiff USAA has amended its allegations of its damages to more fully explained that its damage claim at this time totals $225,021.32. 6. Counsel for Plaintiff USAA has obtained consent for the proposed Amended Complaint from counsel for Mr. Kizer, Kevin M. Blake, Esquire, and counsel for Ms. Witters, Richard J. Boyd, Jr., Esquire. Although Plaintiff USAA's counsel has inquired with counsel for defendant Seitz, Patrick J. Moran, Esquire, regarding consenting to the proposed Amended Complaint, Plaintiff USAA has not yet received a final response from defendant Seitz's counsel. In addition, neither Ms. Krebs nor Ms. Brewer have appeared or retained counsel for any aspect of this consolidated litigation and therefore their consent could not be obtained. 7. In light of the foregoing, Plaintiff USAA seeks leave to file an Amended Complaint to join Rebecca Krebs, Devon Brewer, and Tyler Yenna as additional defendants. The Statute of Limitations for Plaintiff USAA's negligence claims have not yet run, as the subject fire occurred on January 13, 2008. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, respectfully requests that this Honorable Court grants its Motion for Leave to File an Amended Complaint and Order that Plaintiff's Amended Complaint, attached as Exhibit "A" to the Motion, be deemed filed instanter. Respectfully Submitted, COZEN O'CONNOR Dated: By: JOS)fikft F. RICH, ESQUIRE 1200 Market Street Philadelphia, PA 19103 215-665-7285 Attorneys for Plaintiff USAA Casualty Insurance Company, as subrogee of Diana R. Loyer COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer Plaintiff V. NIKOLAOS C. SEITZ, Defendant. Attorneys for Plaintiff COURT OF COMMON PLEAS Cumberland County CIVIL ACTION NO.: 08-4006 : (Consolidated Action) PLAINTIFF USAA CASUALTY INSURANCE COMPANY'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT Plaintiff, USAA Casualty Insurance Company ("USAA"), as subrogee of Diana R. Loyer, by and through its undersigned counsel, hereby submits the following Memorandum of Law in Support of its Motion For Leave to File an Amended Complaint. 1. QUESTION PRESENTED Whether Plaintiff USAA should be allowed to amend its Complaint to include additional Defendants Rebecca Krebs, Devon Brewer, and Tyler Yenna where Ms. Krebs and Ms. Brewer are already defendants in the consolidated actions brought by the co-plaintiffs, Ms. Witters and Mr. Kizer, and where defendant Seitz has been on notice that Mr. Yenna was present at his property on the evening before the fire? Suggested Answer: Yes. II. PROCEDURAL HISTORY On July 7, 2008, Plaintiff USAA Casualty Insurance Company ("USAA") initiated this action in the Court of Common Pleas of Cumberland County against Defendant Nikolaos C. Seitz to recover damages from a fire and delayed notification of the fire that occurred at the defendant Seitz's property on January 13, 2008, which caused substantial damage to the property of Plaintiff USAA's insured, Diana R. Loyer. [See Plaintiff USAA's Complaint, attached hereto as Exhibit `B"]. On September 15, 2009, Plaintiff USAA's action was consolidated with two other pending actions against Mr. Seitz and other defendants, Rebecca Krebs and Devon Brewer. [See Consolidation Order, attached hereto as Exhibit "C"]. The actions consolidated with Plaintiff USAA's action are captioned Thomas Kizer v. Nikoloas Seitz, Rebecca Krebs and Devin Bewer, and Kathy M. Witters v. Nikoloas Seitz, Rebecca Krebs and Devin Bewer. All three pending actions have been consolidated under Docket No..2008-4006. [See Exhibit "C"]. Shortly after the consolidation, the parties took the deposition of Defendant Seitz on October 8, 2009 and the deposition of Trooper Eric Keebaugh of the Pennsylvania State Police on October 9, 2009. The testimony during these depositions suggested that Rebecca Krebs, Devon Brewer and/or Tyler Yenna may have been involved in cigarette smoking activities on the evening prior to the fire that may have caused or contributed to the fire at defendant Seitz's property. The testimony during these depositions also suggested that Ms. Krebs may have also allowed a delayed notification of the fire that contributed to its spread to Plaintiff's insured's property. Specifically, these depositions revealed that Rebecca Krebs and Devon Brewer were residing at Seitz's property in some capacity at the relevant times concerning this fire and its spread and/or were present within his property during the evening prior to the fire and/or on the day of the fire. Mr. Seitz's deposition also suggested that although Tyler Yenna was not regularly residing at his property, Tyler Yenna was present on the second floor rear porch area of his property on the night before the fire, where the fire is believed to have originated by the collective plaintiffs in these consolidated actions. Rebecca Krebs and Devon Brewer are named defendants in the actions brought by Mr. Kizer and Ms. Witters, which have been consolidated with Plaintiff USAA's action. Therefore, allowing Plaintiff to Amend its Complaint to add these persons as additional defendants will not prejudice defendant Seitz, as defendant Seitz has been on notice of these additional defendants. Moreover, Plaintiff is not seeking to add any additional or new causes or actions or counts against defendant Seitz. The only change to the counts and allegations pertaining to defendant Seitz is that Plaintiff USAA has amended its allegations of its damages to more fully explained that its damage claim at this time totals $225,021.32. Counsel for Plaintiff USAA has obtained consent for the proposed Amended Complaint from counsel for Mr. Kizer, Kevin M. Blake, Esquire, and counsel for Ms. Witters, Richard J. Boyd, Jr., Esquire. Although Plaintiff USAA's counsel has inquired with counsel for defendant Seitz, Patrick J. Moran, Esquire, regarding consenting to the proposed Amended Complaint, Plaintiff USAA has not yet received a final response from defendant Seitz's counsel. In addition, neither Ms. Krebs nor Ms. Brewer have appeared or retained counsel for any aspect of this consolidated litigation and therefore their consent could not be obtained. In light of the foregoing, Plaintiff USAA seeks leave to file an Amended Complaint to join Rebecca Krebs, Devon Brewer, and Tyler Yenna as additional defendants. Moreover, the Statute of Limitations for Plaintiff USAA's negligence claims have not yet run, as the subject fire occurred on January 13, 2008. III. LEGAL ARGUMENT Pennsylvania Rule of Civil Procedure 1033 provides that "[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name or a party or amend his pleading." Pa. R. Civ. P. 1033. The Supreme Court of Pennsylvania has held "the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party." Werner v. Zazyczny, 545 Pa. 570, 583-84, 681 A.2d 1331, 1338 (Pa. 1996) (citing Connor v. Allegheny General Hospital, 461 A.2d 600, 602 (1983)); see also Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 121, n. 6, 516 A.2d 299, 302, n.6 (Pa. 1986). Defendant Seitz will not be prejudiced by the amendment of Plaintiff's Complaint, nor unfairly surprised, as Rebecca Krebs and Devon Brewer are defendants in the consolidated actions brought by co-plaintiffs, Mr. Kizer and Ms. Witters. Defendant's deposition also demonstrated that he has been aware that Tyler Yenna was present at the property prior to the subject fire in an area where cigarette smoking activities took place. Moreover, Plaintiff is not seeking to add any additional or new causes or actions or counts against defendant Seitz. The only change to the counts and allegations pertaining to defendant Seitz in the Amended Complaint is that Plaintiff USAA has amended its allegations of its damages to more fully explained that its damage claim against all defendants at this time totals $225,021.32. Consequently, defendant Seitz would suffer no prejudice where his potential liability for Plaintiff USAA's claim would be offset by the joinder of additional defendants Rebecaa Krebs, Devon Brewer and Tyler Yenna and Plaintiff's Amended Complaint cannot be said to be unfair surprise where defendant Seitz has been aware of the additional defendants' potential involvement. 9 Furthermore, an amendment to include additional defendants is specifically contemplated by Pa. R. Civ. P. 2229(b). The rule for permissive joinder of additional defendants by a plaintiff set forth in Pa. R. Civ. P. 2229 provides: (b) A plaintiff may join as defendants persons against whom the plaintiff asserts any right to relief jointly, severally, separately, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the liabilities of all such persons will arise in the action. See Pa. R. Civ. P. 2229(b). In the present action, Plaintiff USAA's right to relief from defendant Seitz and the proposed additional defendants arise out of the same series of transactions concerning their activities on the evening prior to up and until the time that the fire was discovered. Moreover, common questions or law and fact affect the liabilities of defendant Seitz and the proposed additional defendants. Therefore, Plaintiff USAA should be allowed to file its Amended Complaint. IV. RELIEF SOUGHT For the foregoing reasons, Plaintiff, USAA Casualty Insurance Company, respectfully requests that this Honorable Court grants its Motion for Leave to File an Amended Complaint and Order that Plaintiff's Amended Complaint, attached as Exhibit "A" to the Motion, be deemed filed instanter. Dated: Respectfully Submitted, COZEN O'CONNOR B JO PH F. RICH, ESQUIRE 1900 Market Street Philadelphia, PA 19103 215-665-7285 Attorneys for Plaintiff USAA Casualty Insurance Company, as subrogee of Diana R. Loyer 10 COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3ra Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 Attorneys for Plaintiff USAA CASUALTY INSURANCE IN THE COURT OF COMMON PLEAS COMPANY, CUMBERLAND COUNTY as subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 CIVIL DIVISION Plaintiff, CIVIL ACTION NO.: V. 2008-4006 (consolidated) NIKOLAOS C. SEITZ, JURY TRIAL DEMANDED 10 Poplar St. Wormleysburg, PA 17043 and REBECCA KREBS c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971-2217 and DEVON BREWER 1727 Penn St. Harrisburg, PA 17102-2331 and TYLER YENNA 200 Hidden Valley Lane Harrisburg, PA 17112-9279 Defendants. 1 NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Com- plaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT 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 32 South Bedford Street Carlisle, PA 17013 800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparencencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIES QUE 2 OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 800-990-9108 COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3rd Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, as subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 v. Plaintiff, NIKOLAOS C. SEITZ, 10 Poplar St. Wormleysburg, PA 17043 and REBECCA KREBS c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971-2217 and DEVON BREWER 1727 Penn St. Harrisburg, PA 17102-2331 and TYLER YENNA 200 Hidden Valley Lane Harrisburg, PA 17112-9279 Defendants. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION CIVIL ACTION NO.: 2008-4006 (consolidated) JURY TRIAL DEMANDED COMPLAINT Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, by and through its counsel, hereby demands judgment against Nikolas C. Seitz, Rebecca Krebs, Devon Brewer and Tyler Yenna and, upon information and belief, complains against defendants as follows: PARTIES 1. Plaintiff, USAA Casualty Insurance Company (hereinafter "USAA"), is a corporation organized under the laws of the State of Texas, with a principal place of business located at 9800 Fredericksburg Road, San Antonio, TX 78288. 2. At all times material hereto, Plaintiff USAA was duly authorized to issue policies of insurance within the Commonwealth of Pennsylvania. 3. Defendant, Nikolaos C. Seitz ("Seitz"), is, upon information and belief, a resident of Pennsylvania, with a principal residence located at 10 Poplar Street, Wormleysburg, PA. 4. Defendant, Rebecca Krebs ("Krebs"), is, upon information and belief, a resident of Pennsylvania, with a temporary residence currently located at Salt Air Kitchen, 50 Wilmington Avenue, Rehoboth, DE 19971-2217. 5. Defendant, Devon Brewer ("Brewer"), is, upon information and belief, a resident of Pennsylvania, with a principal residence located at 1727 Penn St., Harrisburg, PA 17102-2331. 6. Defendant, Tyler Yenna ("Yenna"), is, upon information and belief, a resident of Pennsylvania, with a principal residence located at 200 Hidden Valley Lane, Harrisburg, PA 1711209279. 2 JURISDICTION AND VENUE 7. The matter in controversy exceeds $50,000.00, the cause of action arose in Cumberland County, and the matter is otherwise within the jurisdiction of this Court. FACTUAL ALLEGATIONS Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 9. On or around January 13, 2008, Plaintiff's insured, Diana R. Loyer, owned and resided at property located at 6 Poplar Street, Wormleysburg, PA 17043 (hereinafter "the subject property"). 10. At all times material hereto, Plaintiff insured the subject property of Diana R. Loyer and other contents and property located therein. 11. On or around January 12 & 13, 2008, Defendant Seitz owned and resided at 10 Poplar Street, Wormleysburg, PA 17043, which is situated adjacent to and/or near the subject property (hereinafter "the adjacent property"). 12. On or around January 12 & 13, 2008, Defendants Brewer and Krebs resided at the adjacent property with the permission of Defendant Seitz. 13. On or around January 12 & 13, 2008, Defendant Brewer resided in an apartment located in the rear of the second floor of the adjacent property. 14. On or around January 12 & 13, 2008, Defendant Krebs resided in an apartment located in the front of the second floor of the adjacent property. 15. On or around the evening of January 12, 2008 and/or the early morning hours of January 13, 2008, Defendant Yenna was present at the adjacent property with the permission of Defendant Seitz and/or with the permission of Defendant Brewer. 16. On or around January 12 & 13, 2008, Defendant Seitz allowed Defendants Krebs, Brewer and/or Yenna and/or other residents, tenants, invitees, guests, servants, agents, workmen and/or employees to use cigarettes and/or other smoking materials at the adjacent property. 17. On or around January 13, 2008, there was a fire at the adjacent property (hereinafter "the fire"). 18. On or around January 13, 2008, Defendants Seitz and Defendant Krebs learned of and/or were notified of the fire at the adjacent property before the fire and/or smoke from the fire spread to nearby and adjacent homes and structures, including the subject property of Plaintiff's insured. 19. On or on January 13, 2008, after Defendants Seitz and Defendant Krebs learned of and/or were notified of the fire at the adjacent property, the fire and smoke from the fire spread from the adjacent property to nearby and adjacent homes and structures, including the subject premises of Plaintiff's insured. 20. The fire at the adjacent property spread to and caused damage and destruction to the subject property of Plaintiff s insured, which caused Plaintiff's insured to sustain damage to its property and contents. 21. Pursuant to the terms of the above-referenced insurance policy with its insured, Plaintiff USAA has made payments to its insured in the amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32) and expects to make additional payments to its insured for the damages sustained as a result of the fire. 4 22. In accordance with common law principles of legal and equitable subrogation, Plaintiff USAA is subrogated to the rights of its insured with respect to the damages compensable under the policy. COUNT I - NEGLIGENCE v. SEITZ 23. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 24. The fire and resulting damages to Plaintiff's insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Seitz and/or his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees, acting both jointly and severally with the remaining co-defendants, in: (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; (c) causing the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to ensure that his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees at the adjacent property properly used, extinguished, and/or disposed of cigarettes and other smoking materials; (f) allowing and permitting his residents, tenants, invitees, guests, servants, agents, workmen and/or employees to improperly use, extinguish, and/or dispose of cigarettes and other smoking materials at the subject premises; (g) failing to properly warn, train, oversee and supervise his residents, tenants, invitees, guests, servants, agents, workmen and/or employees on the 5 proper use, disposal and extinguishment of cigarettes and other smoking materials so as to avoid causing a fire; (h) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (i) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (j) failing to properly inspect and examine the adjacent property for the existence of a fire after receiving notice of the fire; (k) failing to properly extinguish the fire after its discovery; (1) failing to detect and extinguish the fire; (m) failing to take proper and adequate steps to notify the local Fire Department and/or local authorities of the existence of the fire at the adjacent property after its discovery and/or after receiving notice of the existence of the fire from his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees; and (n) otherwise failing to use due care under the circumstances. 25. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness; and/or negligent acts and/or omissions of Defendant Seitz, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's insured to incur other damages resulting from the fire. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas C. Seitz, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT II -- PRIVATE NUISANCE v. SEITZ 26. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 6 27. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 28. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 29. As the source of the private nuisance, Defendant Seitz is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas C. Seitz, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT III - TRESPASS v. SEITZ 30. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 31. Plaintiff's insured did not consent to the spread of the fire and smoke from the fire to her subject property. 32. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant Seitz unlawfully trespassed upon Plaintiff's insured's property. 7 33. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Seitz is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas C. Seitz, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT IV - NEGLIGENCE v. KREBS 34. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 35. The fire and resulting damages to Plaintiff's insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Krebs, acting both jointly and severally with the remaining co- defendants, in: (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; (c) causing the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to ensure that her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees at the adjacent property properly 8 used, extinguished, and/or disposed of cigarettes and other smoking materials; (f) allowing and permitting her residents, tenants, invitees, guests, servants, agents, workmen and/or employees to improperly use, extinguish, and/or dispose of cigarettes and other smoking materials at the subject premises; (g) failing to properly warn, train, oversee and supervise her residents, tenants, invitees, guests, servants, agents, workmen and/or employees on the proper use, disposal and extinguishment of cigarettes and other smoking materials so as to avoid causing a fire; (h) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (i) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (j) failing to properly inspect and examine the adjacent property for the existence of a fire after receiving notice of the fire; (k) failing to properly extinguish the fire after its discovery; (1) failing to detect and extinguish the fire; (m) failing to take proper and adequate steps to notify the local Fire Department and/or local authorities of the existence of the fire at the adjacent property after its discovery and/or after receiving notice of the existence of the fire from her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees; and (n) otherwise failing to use due care under the circumstances. 36. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, and/or negligent acts and/or omissions of Defendant Krebs, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's insured to incur other damages resulting from the fire. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Rebecca Krebs, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars 9 and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT V -- PRIVATE NUISANCE v. KREBS 37. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 38. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 39. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 40. As the source of the private nuisance, Defendant Krebs is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Rebecca Krebs, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT VI - TRESPASS v. KREBS 41. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 10 42. Plaintiff s insured did not consent to the spread of the fire and smoke from the fire to her subject property. 43. As a result of the spread of the fire and smoke to Plaintiff s insured's subject property, Defendant Krebs unlawfully trespassed upon Plaintiffs insured's property. 44. As a direct and proximate result of the unlawful trespass, Plaintiff s insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Krebs is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Rebecca Krebs, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT VII - NEGLIGENCE v. BREWER 45. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 46. The fire and resulting damages to Plaintiffs insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Brewer, acting both jointly and severally with the remaining co- defendants, in: (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; 11 (c) causing the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to ensure that her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees at the adjacent property properly used, extinguished, and/or disposed of cigarettes and other smoking materials; (f) allowing and permitting her residents, tenants, invitees, guests, servants, agents, workmen and/or employees to improperly use, extinguish, and/or dispose of cigarettes and other smoking materials at the subject premises; (g) failing to properly warn, train, oversee and supervise her residents, tenants, invitees, guests, servants, agents, workmen and/or employees on the proper use, disposal and extinguishment of cigarettes and other smoking materials so as to avoid causing a fire; (h) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (i) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (j) failing to properly inspect and examine the adjacent property for the existence of a fire after receiving notice of the fire; (k) failing to properly extinguish the fire after its discovery; (1) failing to detect and extinguish the fire; (m) failing to take proper and adequate steps to notify the local Fire Department and/or local authorities of the existence of the fire at the adjacent property after its discovery and/or after receiving notice of the existence of the fire from her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees; and (n) otherwise failing to use due care under the circumstances. 47. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, and/or negligent acts and/or omissions of Defendant Brewer, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's insured to incur other damages resulting from the fire. 12 WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Devon Brewer, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT VIII -- PRIVATE NUISANCE v. BREWER 48. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 49. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 50. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 51. As the source of the private nuisance, Defendant Brewer is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Devon Brewer, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. 13 COUNT IX - TRESPASS v. BREWER 52. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 53. Plaintiff's insured did not consent to the spread of the fire and smoke from the fire to her subject property. 54. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant Brewer unlawfully trespassed upon Plaintiff's insured's property. 55. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Brewer is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Devon Brewer, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT X - NEGLIGENCE v. YENNA 56. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 57. The fire and resulting damages to Plaintiff's insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Yenna, acting both jointly and severally with the remaining co- defendants, in: 14 (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; (c) causing or contributing to the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to take adequate and necessary steps to protect the subject property of Plaintiff s insured from the spread of the fire; (f) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff s insured; (g) failing to detect and extinguish the fire; and (h) otherwise failing to use due care under the circumstances. 58. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, and/or negligent acts and/or omissions of Defendant Yenna, the fire described above occurred and resulted in damage and destruction to Plaintiff s insured's property and caused Plaintiff s insured to incur other damages resulting from the fire. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Tyler Yenna, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT II -- PRIVATE NUISANCE v. YENNA 59. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 15 60. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 61. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 62. As the source of the private nuisance, Defendant Yenna is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Tyler Yenna, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT XII - TRESPASS v. YENNA 63. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 64. Plaintiff's insured did not consent to the spread of the fire and smoke from the fire to her subject property. 65. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant Yenna unlawfully trespassed upon Plaintiff's insured's property. 16 66. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Yenna is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Tyler Yenna, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. Respectfully submitted, COZEN AND O'CONNOR ??Z6' J EPH F. RICH, ESQUIRE ttorney I.D. No.: 92067 The Atrium - 3rd Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 Attorneys for Plaintiff Dated: 6 e•^ Uv 1 17 VERIFICATION 1. Joseph F. Rich, Esquire, herby state that I am counsel for the Plaintiff, USAA Casualty Insurance Company, in this action and state that Plaintiff's representative is outside the jurisdiction of the court and a verification cannot be obtained within the time allowed for filing this Amended Complaint and that the statements made in the foregoing Amended Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. Kseph F. Rich Dated: 6a,?& A ,Pf 07 2'_ ?C) -( 18 COZEN O'CONNOR Q BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 - , -E' The Atrium - 3rd Floor 1900 Market Street ;; - ti .. Philadelphia, PA 19103 , , C N) ? ? ? Phone: (215) 665-7285 Fax: (215) 701-2177 Attorneys for Plaintiff USAA CASUALTY INSURANCE IN THE COURT OF COMMON PLEAS COMPANY, CUMBERLAND COUNTY as subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 CIVIL DIVISION Plaintiff, V. NIKOLAOS C. SEITZ, 10 Poplar St. Wormleysburg, PA 17043 Defendant. CIVIL ACTION NO.: c N) I JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Com- plaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT 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 32 South Bedford Street Carlisle, PA 17013 800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparencencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 800-990-9108 2 COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3rd Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, : as subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 Plaintiff, V. NIKOLAOS C. SEITZ, 10 Poplar St. : Wormleysburg, PA 17043 Defendant. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION CIVIL ACTION NO.: 6x-4606 6m ( 4---f-A, JURY TRIAL DEMANDED COMPLAINT Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, by and through its counsel, hereby demands judgment against Nikolas Seitz and, upon information and belief, complains against defendant as follows: PARTIES 1. Plaintiff, USAA Casualty Insurance Company (hereinafter "USAA"), is a corporation organized under the laws of the State of Texas, with a principal place of business located at 9800 Fredericksburg Road, San Antonio, TX 78288. 2. At all times material hereto, Plaintiff USAA was duly authorized to issue policies of insurance within the Commonwealth of Pennsylvania. 3. Defendant, Nikolaos C. Seitz, is, upon information and belief, a resident of Pennsylvania, with a principal residence located at 10 Poplar Street, Wormleysburg, PA. JURISDICTION ANDS VENUE 4. The matter in controversy exceeds $50,000.00, the cause of action arose in Cumberland County, and the matter is otherwise within the jurisdiction of this Court. FACTUAL ALLEGATIONS 5. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 6. On or around January 13, 2008, Plaintiff's insured, Diana R. Loyer, owned and resided at property located at 6 Poplar Street, Wormleysburg, PA 17043 (hereinafter "the subject property") 7. At all times material hereto, Plaintiff insured the subject property of Diana R. Loyer and other contents and property located therein. 8. Upon information and belief, on or around January 13, 2008, Defendant owned and resided at 10 Poplar Street, Wormleysburg, PA 17043, which is situated adjacent to and/or near the subject property (hereinafter "the adjacent property") 9. On or around January 13, 2008, Defendant allowed various residents, tenants, invitees, guests, servants, agents, workmen and/or employees to use cigarettes and/or other smoking materials at the adjacent property. 10. On or around January 13, 2008, there was a fire at the adjacent property (hereinafter "the fire") 2 Y" 11. On or around January 13, 2008, Defendant learned of and/or was notified of the fire at the adjacent property before the fire and/or smoke from the fire spread to nearby and adjacent homes and structures, including the subject property of Plaintiff's insured. 12. On or on January 13, 2008, after Defendant learned of and/or was notified of the fire at the adjacent property, the fire and smoke from the fire spread from the adjacent property to nearby and adjacent homes and structures, including the subject premises of Plaintiff's insured. 13. The fire at the adjacent property spread to and caused damage and destruction to the subject property of Plaintiff's insured, which caused Plaintiff's insured to sustain damage to its property and contents. 14. Pursuant to the terms of the above-referenced insurance policy with its insured, Plaintiff USAA has made payments to its insured in the amount of One Hundred Thirty Seven Thousand Two Hundred and Sixty Nine Dollars and Thirty Four Cents ($137,269.34) and expects to make additional payments to its insured for the damages sustained as a result of the fire. 15. In accordance with common law principles of legal and equitable subrogation, Plaintiff USAA is subrogated to the rights of its insured with respect to the damages compensable under the policy. COUNT I -- NEGLIGENCE 16. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 17. The fire and resulting damages to Plaintiff's insured were the direct and proximate result of the negligence, carelessness, recklessness and gross negligence of Defendant and/or his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees in: (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; (c) causing the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to ensure that his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees at the adjacent property properly used, extinguished, and/or disposed of cigarettes and other smoking materials; (f) allowing and permitting his residents, tenants, invitees, guests, servants, agents, workmen and/or employees to improperly use, extinguish, and/or dispose of cigarettes and other smoking materials at the subject premises; (g) failing to properly warn, train, oversee and supervise his residents, tenants, invitees, guests, servants, agents, workmen and/or employees on the proper use, disposal and extinguishment of cigarettes and other smoking materials so as to avoid causing a fire; (h) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (i) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (j) failing to properly inspect and examine the adjacent property for the existence of a fire after receiving notice of the fire; (k) failing to properly extinguish the fire after its discovery; (1) failing to detect and extinguish the fire; (m) failing to take proper and adequate steps to notify the local Fire Department and/or local authorities of the existence of the fire at the 4 adjacent property after its discovery and/or after receiving notice of the existence of the fire from his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees; and (n) otherwise failing to use due care under the circumstances. 18. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, gross negligence, and/or negligent acts and/or omissions of Defendant, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's insured to incur other damages resulting from the fire. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas Seitz, in an amount of One Hundred Thirty Seven Thousand Two Hundred and Sixty Nine Dollars and Thirty Four Cents ($137,269.34), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT II -- PRIVATE NUISANCE 19. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 20. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 21. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 5 22. As the source of the private nuisance, Defendant is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas Seitz, in an amount of One Hundred Thirty Seven Thousand Two Hundred and Sixty Nine Dollars and Thirty Four Cents ($137,269.34), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT III -- TRESPASS 23. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 24. Plaintiff's insured did not consent to the spread of the fire and smoke from the fire to its subject property. 25. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant unlawfully trespassed upon Plaintiff's insured's property. 26. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas Seitz, in an amount of One Hundred Thirty Seven Thousand Two Hundred and Sixty Nine Dollars and Thirty Four Cents ($137,269.34), together with prejudgment interest, damages 6 for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. Respectfully submitted, COZEAk AND O'CONNOR SEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3rd Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 Dated: '?/;L /ev Attorneys for Plaintiff 7 VERIFICATION Donald Iverson, a duly authorized representative of USAA Casualty Insurance Company, hereby verifies that the statements made in the foregoing Complaint are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements in said Complaint are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. .. Verified this J I day of 2008 8 LAW OFFICES WILLIAM J. FERREN & ASSOCIATES BY: PATRICK J. MORAN, ESQUIRE ATTORNEY ID. NO. 61580 TEN SENTRY PARKWAY, SUITE 301 BLUE BELL, PA 19422 (215) 274- f 701 USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer V. NIKOLAOS C. SEITZ C- C--Z) Attorney for Defendant C ; i11 =Y) - 1-71 , COURT OF COMMON PLEAS`;_-:- CUMBERLAND COUNTY NO. 08-40-06 STIPULATION OF COUNSEL Plaintiff, USAA Casualty Insurance Company, a/s/o Diana R. Loyer and their counsel, Joseph F. Rich, Esquire and Patrick J. Moran, Esquire, counsel for defendant, Nikolaos C. Seitz, agree that the allegation of gross negligence shall be removed from paragraphs 17 and 18 of plaintiff's Complaint. COZEN O'CONNOR By Joseph F. Rich, Esquire 1Z - Attorney for Plaintiff WILLIAM J. FERREN & ASSOCIATES By Patrick J. M , Esquire -AEn Attorney for Defendant SEP 1 8 2009 sEP ? 5 coos 4 U S AR? ?17d USAA Casualty Insurance COURT OF COMMON PLEAS Company, a/s/o Diana R. Loyer CUMBERLAND COUNTY, PA V. NO. 2008-4006 Nikolaos C. Seitz Jury Trial Demanded Thomas Kiser COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. Civil Action - Law Nikolaos Seitz, et al. NO.: 2008-04832 Jury Trial Demanded Kathy M. Witters COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. NO.: 20094259 Nikolaos Seitz, Rebecca Krebs and Devin Brewer Jury Trial Demanded ORDER AND NOW, this /&A- day ofJ? 2009, it is hereby ORDERED and DECREED that Defendants' Motion to Consolidate is GRANTED. It is further ORDERED and DECREED that the matters are consolidated for purposes of Discovery and Trial under the action docketed with this Court under Docket No. 2008-4006. BY THE COURT: TRUE COPY FROM RECO?RO + T t??lty+?ntyt???nty Of Wtte?,?gt, t We undo W my h&1% 44 l?li 7Y ?f V at VOi v*,. AR i ? - CERTIFICATE OF SERVICE I, Joseph F. Rich, hereby certify that on October 27, 2009, I served a true and correct copy of Plaintiff's Motion for Leave to file an Amended Complaint, together with its Memorandum, in Support thereof, on the following: Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Attorneys for Defendant Nikoloas Seitz Kevin M. Blake, Esquire Bennett, Bricklin & Saltzburg, LLP Five Valley Square, Suite 200 512 Township Line Road Blue Bell, PA 19422 Attorneys for co-Plaintiff Thomas Kizer Richard J. Boyd, Jr., Esquire Nelson Levine de Luca & Horst, LLC 518 Township Line Road, Suite 300 Blue Bell, PA 19422 Attorneys for co-Plaintiff Kathy M. Witters Rebecca Krebs c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971-2217 Devon Brewer 1727 Penn St. Harrisburg, PA 17102-2331 OSEPH F. RICH, ESQUIRE 11 FILE[ uc OF THE P 0TARY 1009 OCT 29 QM 2: 01 COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer Plaintiff V. NIKOLAOS C. SEITZ, Defendant. OCT 3 0 2009 j9 Attorneys for Plaintiff COURT OF COMMON PLEAS Cumberland County CIVIL ACTION NO.: 08-4006 (Consolidated Action) ORDER AND NOW, this 3o., day of 60bj.i , 2009, after consideration of Plaintiff USAA Casualty Insurance Company's Motion For Leave to File an Amended Complaint, and any response filed thereto, it is hereby ORDERED AND DECREED that Plaintiff's Motion is GRANTED. Plaintiff's Amended Complaint, attached as Exhibit "A" to the Motion, is deemed filed instanter. TIXT TTTn /"11-%T 177 T. ALED -OFFICE OF THE PROTP OTAW 2009 NOY -2 AM 8: 14 " TY PENNSYLVANIA !l,A?p - ??FS J+1+tllSd? 444', 90YCL, ?4? P. Mc:`-x? j2 . Ka£.6s COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3rd Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, as subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 Plaintiff, V. NIKOLAOS C. SEITZ, 10 Poplar St. Wormleysburg, PA 17043 and REBECCA KREBS c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971-2217 and DEVON BREWER 1727 Penn St. Harrisburg, PA 17102-2331 and TYLER YENNA 200 Hidden Valley Lane Harrisburg, PA 17112-9279 Defendants. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION CIVIL ACTION NO. 2008-4006 (consolidated) JURY TRIAL DEMANDED 1 NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Com- plaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT 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 32 South Bedford Street Carlisle, PA 17013 800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparencencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE 2 OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 800-990-9108 3 COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3rd Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, as subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 Plaintiff, V. NIKOLAOS C. SEITZ, 10 Poplar St. Wormleysburg, PA 17043 and REBECCA KREBS c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971-2217 and DEVON BREWER 1727 Penn St. Harrisburg, PA 17102-2331 and TYLER YENNA 200 Hidden Valley Lane Harrisburg, PA 17112-9279 Defendants Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION CIVIL ACTION NO.: 2008-4006 (consolidated) JURY TRIAL DEMANDED Wa3 A W COMPLAINT Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, by and through its counsel, hereby demands judgment against Nikolas C. Seitz, Rebecca Krebs, Devon Brewer and Tyler Yenna and, upon information and belief, complains against defendants as follows: PARTIES 1. Plaintiff, USAA Casualty Insurance Company (hereinafter "USAA"), is a corporation organized under the laws of the State of Texas, with a principal place of business located at 9800 Fredericksburg Road, San Antonio, TX 78288. 2. At all times material hereto, Plaintiff USAA was duly authorized to issue policies of insurance within the Commonwealth of Pennsylvania. 3. Defendant, Nikolaos C. Seitz ("Seitz"), is, upon information and belief, a resident of Pennsylvania, with a principal residence located at 10 Poplar Street, Wormleysburg, PA. 4. Defendant, Rebecca Krebs ("Krebs"), is, upon information and belief, a resident of Pennsylvania, with a temporary residence currently located at Salt Air Kitchen, 50 Wilmington Avenue, Rehoboth, DE 19971-2217. 5. Defendant, Devon Brewer ("Brewer"), is, upon information and belief, a resident of Pennsylvania, with a principal residence located at 1727 Penn St., Harrisburg, PA 17102-2331. 6. Defendant, Tyler Yenna ("Yenna"), is, upon information and belief, a resident of Pennsylvania, with a principal residence located at 200 Hidden Valley Lane, Harrisburg, PA 1711209279. 2 JURISDICTION AND VENUE 7. The matter in controversy exceeds $50,000.00, the cause of action arose in Cumberland County, and the matter is otherwise within the jurisdiction of this Court. FACTUAL ALLEGATIONS Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 9. On or around January 13, 2008, Plaintiff's insured, Diana R. Loyer, owned and resided at property located at 6 Poplar Street, Wormleysburg, PA 17043 (hereinafter "the subject property"). 10. At all times material hereto, Plaintiff insured the subject property of Diana R. Loyer and other contents and property located therein. 11. On or around January 12 & 13, 2008, Defendant Seitz owned and resided at 10 Poplar Street, Wormleysburg, PA 17043, which is situated adjacent to and/or near the subject property (hereinafter "the adjacent property"). 12. On or around January 12 & 13, 2008, Defendants Brewer and Krebs resided at the adjacent property with the permission of Defendant Seitz. 13. On or around January 12 & 13, 2008, Defendant Brewer resided in an apartment located in the rear of the second floor of the adjacent property. 14. On or around January 12 & 13, 2008, Defendant Krebs resided in an apartment located in the front of the second floor of the adjacent property. 15. On or around the evening of January 12, 2008 and/or the early morning hours of January 13, 2008, Defendant Yenna was present at the adjacent property with the permission of Defendant Seitz and/or with the permission of Defendant Brewer. 16. On or around January 12 & 13, 2008, Defendant Seitz allowed Defendants Krebs, Brewer and/or Yenna and/or other residents, tenants, invitees, guests, servants, agents, workmen and/or employees to use cigarettes and/or other smoking materials at the adjacent property. 17. On or around January 13, 2008, there was a fire at the adjacent property (hereinafter "the fire") 18. On or around January 13, 2008, Defendants Seitz and Defendant Krebs learned of and/or were notified of the fire at the adjacent property before the fire and/or smoke from the fire spread to nearby and adjacent homes and structures, including the subject property of Plaintiff's insured. 19. On or on January 13, 2008, after Defendants Seitz and Defendant Krebs learned of and/or were notified of the fire at the adjacent property, the fire and smoke from the fire spread from the adjacent property to nearby and adjacent homes and structures, including the subject premises of Plaintiff's insured. 20. The fire at the adjacent property spread to and caused damage and destruction to the subject property of Plaintiff's insured, which caused Plaintiff's insured to sustain damage to its property and contents. 21. Pursuant to the terms of the above-referenced insurance policy with its insured, Plaintiff USAA has made payments to its insured in the amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32) and expects to make additional payments to its insured for the damages sustained as a result of the fire. 4 22. In accordance with common law principles of legal and equitable subrogation, Plaintiff USAA is subrogated to the rights of its insured with respect to the damages compensable under the policy. COUNT I - NEGLIGENCE v. SEITZ 23. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 24. The fire and resulting damages to Plaintiff s insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Seitz and/or his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees, acting both jointly and severally with the remaining co-defendants, in: (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; (c) causing the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to ensure that his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees at the adjacent property properly used, extinguished, and/or disposed of cigarettes and other smoking materials; (f) allowing and permitting his residents, tenants, invitees, guests, servants, agents, workmen and/or employees to improperly use, extinguish, and/or dispose of cigarettes and other smoking materials at the subject premises; (g) failing to properly warn, train, oversee and supervise his residents, tenants, invitees, guests, servants, agents, workmen and/or employees on the 5 proper use, disposal and extinguishment of cigarettes and other smoking materials so as to avoid causing a fire; (h) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (i) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (j) failing to properly inspect and examine the adjacent property for the existence of a fire after receiving notice of the fire; (k) failing to properly extinguish the fire after its discovery; (1) failing to detect and extinguish the fire; (m) failing to take proper and adequate steps to notify the local Fire Department and/or local authorities of the existence of the fire at the adjacent property after its discovery and/or after receiving notice of the existence of the fire from his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees; and (n) otherwise failing to use due care under the circumstances. 25. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, and/or negligent acts and/or omissions of Defendant Seitz, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's insured to incur other damages resulting from the fire. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas C. Seitz, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT II -- PRIVATE NUISANCE v. SEITZ 26. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 6 27. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 28. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 29. As the source of the private nuisance, Defendant Seitz is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas C. Seitz, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT III - TRESPASS v. SEITZ 30. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 31. Plaintiff's insured did not consent to the spread of the fire and smoke from the fire to her subject property. 32. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant Seitz unlawfully trespassed upon Plaintiff's insured's property. 7 33. As a direct and proximate result of the unlawful trespass, Plaintiffs insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Seitz is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas C. Seitz, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT IV - NEGLIGENCE v. KREBS 34. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 35. The fire and resulting damages to Plaintiffs insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Krebs, acting both jointly and severally with the remaining co- defendants, in: (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; (c) causing the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to ensure that her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees at the adjacent property properly 8 used, extinguished, and/or disposed of cigarettes and other smoking materials; (f) allowing and permitting her residents, tenants, invitees, guests, servants, agents, workmen and/or employees to improperly use, extinguish, and/or dispose of cigarettes and other smoking materials at the subject premises; (g) failing to properly warn, train, oversee and supervise her residents, tenants, invitees, guests, servants, agents, workmen and/or employees on the proper use, disposal and extinguishment of cigarettes and other smoking materials so as to avoid causing a fire; (h) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (i) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (j) failing to properly inspect and examine the adjacent property for the existence of a fire after receiving notice of the fire; (k) failing to properly extinguish the fire after its discovery; (1) failing to detect and extinguish the fire; (m) failing to take proper and adequate steps to notify the local Fire Department and/or local authorities of the existence of the fire at the adjacent property after its discovery and/or after receiving notice of the existence of the fire from her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees; and (n) otherwise failing to use due care under the circumstances. 36. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, and/or negligent acts and/or omissions of Defendant Krebs, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's in sured to incur other damages resulting from the fire. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Rebecca Krebs, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars 9 and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT V -- PRIVATE NUISANCE v. KREBS 37. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 38. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 39. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 40. As the source of the private nuisance, Defendant Krebs is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Rebecca Krebs, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT VI - TRESPASS v. KREBS 41. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 10 42. Plaintiff's insured did not consent to the spread of the fire and smoke from the fire to her subject property. 43. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant Krebs unlawfully trespassed upon Plaintiff's insured's property. 44. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Krebs is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Rebecca Krebs, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT VII - NEGLIGENCE v. BREWER 45. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 46. The fire and resulting damages to Plaintiff's insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Brewer, acting both jointly and severally with the remaining co- defendants, in: (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; 11 (c) causing the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to ensure that her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees at the adjacent property properly used, extinguished, and/or disposed of cigarettes and other smoking materials; (f) allowing and permitting her residents, tenants, invitees, guests, servants, agents, workmen and/or employees to improperly use, extinguish, and/or dispose of cigarettes and other smoking materials at the subject premises; (g) failing to properly warn, train, oversee and supervise her residents, tenants, invitees, guests, servants, agents, workmen and/or employees on the proper use, disposal and extinguishment of cigarettes and other smoking materials so as to avoid causing a fire; (h) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (i) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (j) failing to properly inspect and examine the adjacent property for the existence of a fire after receiving notice of the fire; (k) failing to properly extinguish the fire after its discovery; (1) failing to detect and extinguish the fire; (m) failing to take proper and adequate steps to notify the local Fire Department and/or local authorities of the existence of the fire at the adjacent property after its discovery and/or after receiving notice of the existence of the fire from her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees; and (n) otherwise failing to use due care under the circumstances. 47. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, and/or negligent acts and/or omissions of Defendant Brewer, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's insured to incur other damages resulting from the fire. 12 WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Devon Brewer, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT VIII -- PRIVATE NUISANCE v. BREWER 48. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 49. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 50. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 51. As the source of the private nuisance, Defendant Brewer is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Devon Brewer, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. 13 COUNT IX - TRESPASS v. BREWER 52. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 53. Plaintiff's insured did not consent to the spread of the fire and smoke from the fire to her subject property. 54. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant Brewer unlawfully trespassed upon Plaintiff's insured's property. 55. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Brewer is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Devon Brewer, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT X - NEGLIGENCE v. YENNA 56. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 57. The fire and resulting damages to Plaintiff's insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Yenna, acting both jointly and severally with the remaining co- defendants, in: 14 (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; (c) causing or contributing to the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (f) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (g) failing to detect and extinguish the fire; and (h) otherwise failing to use due care under the circumstances. 58. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, and/or negligent acts and/or omissions of Defendant Yenna, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's in sured to incur other damages resulting from the fire. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Tyler Yenna, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT II -- PRIVATE NUISANCE v. YENNA 59. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 15 60. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 61. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 62. As the source of the private nuisance, Defendant Yenna is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Tyler Yenna, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT XII - TRESPASS v. YENNA 63. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 64. Plaintiff's insured did not consent to the spread of the fire and smoke from the fire to her subject property. 65. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant Yenna unlawfully trespassed upon Plaintiff's insured's property. 16 66. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Yenna is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Tyler Yenna, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. Respectfully submitted, COZEN AND O'CONNOR Pa? SEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3ra Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 Attorneys for Plaintiff Dated: / ?o 17 VERIFICATION 1. Joseph F. Rich, Esquire, herby state that I am counsel for the Plaintiff, USAA Casualty Insurance Company, in this action and state that Plaintiff's representative is outside the jurisdiction of the court and a verification cannot be obtained within the time allowed for filing this Amended Complaint and that the statements made in the foregoing Amended Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. l? /69 la Josh F. Rich Dated: ? U 18 ?? ,, ? `.. ? r. '1 n { ;? .;i la?? ? 1-'•, v?? BENNETT, BRICKLIN & SALTZBURG LLC L,,-BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. . NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) PLAINTIFF, THOMAS KISER'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT Pursuant to Pennsylvania Rules of Civil Procedure 1033 and 229(b), Moving Plaintiff, Thomas Kiser, through his undersigned counsel hereby files his Motion for Leave to File an Amended Complaint, a copy of which is attached as Exhibit A, and avers as follows: 1. Moving Plaintiff initiated this action in the Court of Common Pleas of Cumberland County against Defendants, Nicholas Seitz, Rebecca Krebs and Devin Brewer, as a result of a fire which occurred at the property owned and resided in by Mr. Seitz and partially rented to Ms. Krebs and Ms. Brewer, of whom Mr. Yenna was a guest. 2. On or about January 13, 2008, a fire occurred on the second floor balcony of the subject premises, as a result of the careless disposal of smoking materials by one or all of the Defendants. 3. Plaintiffs USAA Casualty Insurance and Kathy M. Witters instigated similar actions for damages arising out of the same events. 4. These actions were consolidated under Docket No. 2008-4006 on September 15, 2009. After taking the depositions of Defendant Seitz and Trooper Eric Keebaugh in October 2009, Moving Plaintiff learned that, in addition to the previously named Defendants, Tyler Yenna may also be responsible for the fire that gave rise to Moving Plaintiff's damages, as Tyler Yenna may have been involved in cigarette smoking activities on the evening prior to the fire, which may have contributed to or caused the subject fire. 6. On October 30, 2009, this Honorable Court granted Plaintiff USAA's Motion for Leave to Amend its Complaint, and deemed its Amended Complaint filed instanteur. That Complaint sets forth a claim against Tyler Yenna and states that the collective Plaintiffs believe that Nicholas Seitz, Rebecca Krebs, Devin Brewer and/or Tyler Yenna caused or contributed to the subject fire. 7. Pursuant to Pennsylvania Rule of Civil Procedure 1033, a party may amend an answer at any time with the filed consent of all parties or upon leave of court. The rule provides: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. Pa. R. Civ. Pro. 1033. "Amendments are to be liberally permitted except where surprise or prejudice to the other party will result, or where the amendment is against a positive rule of law." Miller v. Stroud TM., 804 A.2d 749, 754 (Pa. Cmwlth. 2002) (emphasis supplied). Here, allowing Moving Plaintiff to Amend his Complaint to add Tyler Yenna as a Defendant will not prejudice Nicholas Seitz, Rebecca Krebs or Devin Brewer, as they are on notice of this additional Defendant, by virtue of their knowledge that he was present on the evening before the fire. Nor will it surprise Mr. Yenna or any of the previously named Defendants, as they were all on notice of the claims against Mr. Yenna by virtue of Plaintiff USAA's Amended Complaint, which names him as a Defendant. 9. Moving Plaintiff does not seek to add any additional causes or actions against the already named Defendants. 10. Furthermore, the applicable two-year Statute of Limitations has not yet run, as the subject fire occurred on January 13, 2008. Accordingly, Moving Plaintiff could file suit against Mr. Yenna separately. The interests of justice and judicial economy, however, favor joining all involved parties in one action. 11. Consequently, Moving Plaintiff seeks leave to file an Amended Complaint to join Tyler Yenna as a Defendant. WHEREFORE, Plaintiff, Thomas Kiser respectfully requests that this Honorable Court grant his Motion for Leave to File an Amended Complaint and Order that Plaintiff s Amended Complaint, attached as Exhibit A, be deemed filed instanter. BENNETT, BRICKLIN & SALTZBURG LLC r? BY KEVIN M. BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser VERIFICATION I, KEVIN M. BLAKE, ESQUIRE, do hereby certify that I am the attorney for the PLAINTIFF herein, THOMAS KISER, that as such I am authorized to take this verification, and that the facts set forth in the foregoing PLAINTIFF, THOMAS KISER'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT, are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATED: November 20, 2009 41- KEVIN M. BLAKE, ESQUIRE EXHIBIT A • BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) CIVIL ACTION AMENDED COMPLAINT Plaintiff, Thomas Kiser (hereinafter "Plaintiff'), by and through his undersigned counsel, hereby complains of Defendants and, upon information and belief, alleges the following: Plaintiff is an adult individual currently residing at 12 Poplar Street, Wormleysburg, Pennsylvania 17043. 2. On or about January 13, 2008 Plaintiff owned and resided at the residence located at 12 Poplar Street, Wormleysburg, Pennsylvania 17043. 3. Defendants Nikolaos Seitz, Devin Brewer and Rebecca Krebs are adult individuals who resided at 10 Poplar Street, Wormleysburg, Pennsylvania 17043 on January 13, 2008. 4. Defendant Tyler Yenna was present at 10 Poplar Street, Wormleysburg, Pennsylvania 17043 on or about January 12 and/or 13, 2008. 5. On or about January 13, 2008 Defendant Nikolaos Seitz owned the residence located at 10 Poplar Street, Wormleysburg, Pennsylvania 17043 (hereinafter referred to as "subject premises") and resided in the first and third floors of same. 6. On or about January 12 and 13, 2008 Defendant Devin Brewer resided in an apartment located in the rear of the second floor of the subject premises as a tenant of Defendant Seitz. 7. On or about January 12 and 13, 2008 Defendant Rebecca Krebs resided in an apartment located in the front of the second floor of the subject premises as a tenant of Defendant Seitz. 8. On or about January 12 and/or 13, 2008 Defendant Tyler Yenna, although not regularly residing at the subject premises, was present on the second floor porch area of the subject premises, where the fire is believed to have originated. 9. On or about January 12 and 13, 2008 Defendant Seitz allowed his tenants and their guests to smoke cigarettes in an area that was unsafe for that activity. 10. On or about January 13, 2008, a fire occurred on the second floor balcony of the subject premises, as a result of the careless disposal of smoking materials by one or all of the Defendants. 11. On or about January 13, 2008 Defendant Nikolaos Seitz, after arriving at the subject premises between 1:00 p.m. and 1:30 p.m. began to detect the odor of burning wood and subsequently searched the subject premises, including the basement in which he observed a smoke condition. 12. On or about January 13, 2008 Defendant Rebecca Krebs, after awakening in her apartment at the subject premises at approximately 2:00 p.m. and immediately beginning to smell smoke, discussed her suspicions with Defendant Nikolaos Seitz, who informed her that he was unable to locate the source of the smell, and then returned to her apartment to take a shower. 13. None of the Defendants called emergency or fire officials after smelling smoke. 2 14. The above-referenced fire spread throughout the subject premises and subsequently spread to Plaintiff's residence located at 12 Poplar Street, Wormleysburg, Pennsylvania 17043, causing substantial fire, smoke, and water damage. 15. As a direct and proximate result of the fire, Plaintiff sustained damages to his premises and personal property, as well as various other costs for alternative living expenses. WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. COUNT I- NEGLIGENCE Thomas Kiser vs. Nikolaos Seitz 16. Plaintiff, Thomas Kiser, incorporates by reference the averments set forth in paragraphs 1 through 15 above as though each were set forth at length herein. 17. The above-referenced fire and associated damages suffered by Plaintiff were proximately caused by the carelessness, negligence, recklessness, negligent acts and/or omissions of Defendant Nikolaos Seitz, acting both jointly and severally with the remaining Co-Defendants, in the following: (a) failing to inspect and/or test smoke detection devices in the subject premises; (b) failing to recommend and/or take other necessary and appropriate steps to ensure the smoke detection devices were in proper working condition; (c) failing to take all precautions necessary under the circumstances to safeguard the premises from the risk of fire; (d) failing to ensure the safety of the premises from the risk of fire through the lease agreement with tenants; (e) failing to contact the proper authorities after observing a smoke condition in the subject premises; (f) failing to take necessary and appropriate steps to warn tenants of a possible fire after observing the smoke condition; (g) leasing to a tenant who carelessly and improperly disposed of smoking material at the subject premises which Defendant knew or should have known created an unreasonable risk of harm to the subject premises; (h) allowing tenants and their guests to smoke cigarettes in an area that was inappropriate and unsafe for such activities; and (i) otherwise failing to use due care under the circumstances in ways that may be further revealed during the course of discovery. 18. Plaintiff's damages were caused in no way by the actions or inactions of Plaintiff, rather all of Plaintiff's losses were caused by the carelessness, negligence, and/or recklessness of Defendant Seitz, as set forth above. WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. COUNT II- NEGLIGENCE Thomas Kiser vs. Devin Brewer 19. Plaintiff, Thomas Kiser, incorporates by reference the averments set forth in paragraphs 1 through 18 above as though each were set forth at length herein. 20. The above-referenced fire and associated damages suffered by Plaintiff were proximately caused by the carelessness, negligence, recklessness, negligent acts and/or omissions of Defendant Devin Brewer, acting both jointly and severally with the remaining Co-Defendants, in the following: (a) improperly disposing of smoking material at the subject premises which Defendant knew or should have known created an unreasonable risk of harm to the subject premises; 4 (b) failing to inspect and/or test smoke detection devices in the subject premises; (c) failing to take all precautions necessary under the circumstances to safeguard the premises from the risk of fire; (d) failing to make sure the cigarette was not lit before it was disposed of, and (e) otherwise failing to use due care under the circumstances in ways that may be further revealed during the course of discovery. 21. Plaintiff's damages were caused in no way by the actions or inactions of Plaintiff, rather all of Plaintiffs losses were caused by the carelessness, negligence, and/or recklessness of Defendant, as set forth above. WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. COUNT III- NEGLIGENCE Thomas Kiser vs. Rebecca Krebs 22. Plaintiff, Thomas Kiser, incorporates by reference the averments set forth in paragraphs 1 through 21 above as though each were set forth at length herein. 23. The above-referenced fire and associated damages suffered by Plaintiff were proximately caused by the carelessness, negligence, recklessness, negligent acts and/or omissions of Defendant Rebecca Krebs, acting both jointly and severally with the remaining Co- Defendants, in the following: (a) improperly disposing of smoking material at the subject premises which Defendant knew or should have known created an unreasonable risk of harm to the subject premises; (b) failing to inspect and/or test smoke detection devices in the subject premises; (c) failing to take all precautions necessary under the circumstances to safeguard the premises from the risk of fire; (d) failing to make sure the cigarette was not lit before it was disposed of, and (e) otherwise failing to use due care under the circumstances in ways that may be further revealed during the course of discovery. 24. Plaintiff's damages were caused in no way by the actions or inactions of Plaintiff, rather all of Plaintiff's losses were caused by the carelessness, negligence, and/or recklessness of Defendant, as set forth above. WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. COUNT IV- NEGLIGENCE Thomas Kiser vs. Tyler Yenna 25. Plaintiff, Thomas Kiser, incorporates by reference the averments set forth in paragraphs 1 through 24 above as though each were set forth at length herein. 26. The above-referenced fire and associated damages suffered by Plaintiff were proximately caused by the carelessness, negligence, recklessness, negligent acts and/or omissions of Defendant Tyler Yenna, acting both jointly and severally with the remaining Co-Defendants, in the following: (a) improperly disposing of smoking material at the subject premises which Defendant knew or should have known created an unreasonable risk of harm to the subject premises; (b) failing to make sure the cigarette was not lit before it was disposed of, and (c) failing to inspect and/or test smoke detection devices in the subject premises; (d) failing to take all precautions necessary under the circumstances to 6 safeguard the premises from the risk of fire; (e) failing to notify the proper authorities of a possible fire in the subject premises; and (f) otherwise failing to use due care under the circumstances in ways that may be further revealed during the course of discovery. 27. Plaintiff's damages were caused in no way by the actions or inactions of Plaintiff, rather all of Plaintiff's losses were caused by the carelessness, negligence, and/or recklessness of Defendant, as set forth above. WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. COUNT V - RES IPSA LOQUITUR Thomas Kiser vs. Nikolaos Seitz, Devin Brewer, Rebecca Krebs and Tyler Yenna 28. Plaintiff, Thomas Kiser, incorporates by reference the averments set forth in paragraphs 1 through 28 above as though each were set forth at length herein. 29. It may be inferred that harm suffered by Plaintiff was caused by negligence of Defendants, Nikolaos Seitz, Devin Brewer, Rebecca Krebs and Tyler Yenna when: (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of Plaintiffs and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of Defendants' duty to Plaintiff. 7 WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. BENNETT, BRICKLIN & SALTZBURG LLC BY KEVIN M. BLAKE, ESQUIRE Attorney for Plaintiff 8 VERIFICATION I, Kevin M. Blake, Esquire, do hereby verify that I am the attorney for the Plaintiff, Thomas Kiser in the above-captioned action and that the facts set forth in the foregoing Amended Civil Action Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. KEVIN M. BLAKE DATE: November 20, 2009 9 s BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com ATTORNEY FOR: Plaintiff Kiser USAA CASUALTY INSURANCE COURT OF COMMON PLEAS OF COMPANY, a/s/o Diana R. Loyer, et al CUMBERLAND COUNTY, PA. VS. CIVIL ACTION NIKOLAOS C. SEITZ, et al NO. 08-4006 (Consolidated Action) PLAINTIFF THOMAS KISER'S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT Moving Plaintiff, Thomas Kiser, through his undersigned counsel hereby submits his Memorandum of Law in Support of His Motion for Leave to File an Amended Complaint. QUESTION PRESENTED Should Moving Plaintiff, Thomas Kiser be permitted to amend his Complaint to add a cause of action against Tyler Yenna where Defendant Yenna is already a Defendant in the consolidated action brought by co-Plaintiff USAA and where the previously-named Defendants were on notice that Mr. Yenna was present on the evening before the fire? Suggested Answer: Yes. H. PROCEDURAL HISTORY Moving Plaintiff incorporates the factual averments of his Motion for Leave to Amend as if the same were fully set forth at length herein. III. LEGAL ARGUMENT Pursuant to Pennsylvania Rule of Civil Procedure 1033, a party may amend a Complaint at any time with the filed consent of all parties or upon leave of court. The rule provides: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. Pa. R. Civ. Pro. 1033. "Amendments are to be liberally permitted except where surprise or prejudice to the other party will result, or where the amendment is against a positive rule of law." Miller v. Stroud TM., 804 A.2d 749, 754 (Pa. Cmwlth. 2002) (emphasis supplied). Here, allowing Moving Plaintiff to Amend his Complaint to add Tyler Yenna as a Defendant will not prejudice Nicholas Seitz, Rebecca Krebs or Devin Brewer, as they are on notice of this additional Defendant, by virtue of their knowledge that he was present on the evening before the fire. Nor will it surprise Mr. Yenna or any of the previously named Defendants, as they were all on notice of the claims against Mr. Yenna by virtue of Plaintiff USAA's Amended Complaint, which names him as a Defendant. Moving Plaintiff does not seek to add any additional causes or actions against the already named Defendants. Furthermore, the applicable two-year Statute of Limitations has not yet run, as the subject fire occurred on January 13, 2008. Accordingly, Moving Plaintiff could file suit against Mr. Yenna separately. The interests of justice and judicial economy, however, favor joining all involved parties in one action. Consequently, Moving Plaintiff seeks leave to file an Amended Complaint to join Tyler Yenna as a Defendant. IV. RELIEF SOUGHT i +? In light of the foregoing, Moving Plaintiff, Thomas Kiser respectfully requests that this Honorable Court grant his Motion for Leave to File an Amended Complaint and Order that Plaintiff's Amended Complaint, attached as Exhibit A, be deemed filed instanter. BENNETT, BRICKLIN & SALTZBURG LLC J BY KEVIN M. BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser t ` AV BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) CERTIFICATE OF SERVICE I, KEVIN M. BLAKE, Esquire, do hereby certify that a true and correct copy of the foregoing PLAINTIFF, THOMAS KISER' S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT has been served upon the following persons: Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Attorneys for Defendant Nikoloas Seitz Joseph F. Rich, Esquire Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Attorneys for Co-Plaintiff USAA a/s/o Diana R. Loyer Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst, LLC 518 Township Line Road, Ste. 300 Blue Bell, PA 19422 Attorneys for Co-Plaintiff Kathy M. Witters Rebecca Krebs c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971-2217 Devon Brewer 1727 Penn St. Harrisburg, PA 17102-2331 VIA: United States Regular First Class Mail on November 20. 2009 BENNETT, BRICKLIN & SALTZBURG LLC i BY KEVIN M. BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser 2009 NOV 23 FH 3: 31 USAA CASUALTY INSURANCE COMPANY As subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 Plaintiff, V. NIKOLAOS C. SEITZ 10 Poplar St. Wormleysburg, PA 17043 and REBECCA KREBS c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971-2217 and DEVON BREWER 1727 Penn St. Harrisburg, PA 17102-2331 and TYLER YENNA 200 Hidden Valley Lane Harrisburg, PA 17112-9279 Defendant, THOMAS KISER vs. NIKOLAOS SEITZ, DEVIN BREWER and REBECCA KREBS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL DIVISION CIVIL ACTION NO.: 2008-4006 (consolidated) JURY TRIAL DEMANDED COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION NO. 08-4832 NOTICE TO PLEAD TO: USAA CASUALTY INSURANCE COMPANY c/o Joseph F. Rich, Esq. THOMAS KISER c/o Kevin M. Blake, Esq. YOU ARE HERBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTION WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. THE LAW OFFICES OF LESLIE DAVID JACOBSON Dated: 11/19/2009 cPartland ID# 209669 8150 Derry Street, Ste. A Harrisburg, PA 17111 717.909.5858 FAX: 717.909.7788 Attorney for Defendant 2 P A USAA CASUALTY INSURANCE IN THE COURT OF COMMON PLEAS OF COMPANY CUMBERLAND COUNTY As subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 CIVIL DIVISION Plaintiff, CIVIL ACTION NO.: V. 2008-4006 (consolidated) NIKOLAOS C. SEITZ JURY TRIAL DEMANDED 10 Poplar St. Wormleysburg, PA 17043 and REBECCA KREBS c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971-2217 And DEVON BREWER 1727 Penn St. Harrisburg, PA 17102-2331 And TYLER YENNA 200 Hidden Valley Lane Harrisburg, PA 17112-9279 Defendant, THOMAS KISER COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA VS. CIVIL ACTION NIKOLAOS SEITZ, DEVIN BREWER and REBECCA KREBS NO. 08-4832 3 DEFENDANT DEVON BREWER'S PRELEVUNARY OBJECTION TO PLAINTIFF'S COMPLAINT AND NOW COMES Defendant, Devon Brewer, by and through her attorneys, The Law Offices of Leslie David Jacobson, and files this Preliminary Objection to Plaintiff's Complaint, and in support thereof states the following: I. PRELEWWARY OBJECTION PURSUANT TO Pa.ILC.P.1028(a)(1) A Complaint was filed against Defendant Devon Brewer alleging Negligence, Private Nuisance, and Trespass in connection with a fire that occurred in or around an apartment Defendant Brewer was renting. 2. On November 10, 2009 a Notice of Intention to Take a Default Judgment was mailed by Plaintiff attorney Kevin M. Blake, Esq. 3. Pa.R.C.P. 400 states in relevant part that "original process shall be served within the Commonwealth only by the Sheriff...." 4. The instant action was required by rule to be served upon Defendant Brewer by the appropriate Sheriff. 5. Defendant Brewer was never served a Complaint by Sheriff. 6. The Plaintiff has failed to properly serve Defendant Brewer. 7. A Preliminary Objection is appropriate when there is improper form or service of a complaint. Pa.R.C.P. 1028(a)(1). WHEREFORE, Defendant Devon Brewer respectfully requests this Court grant its Preliminary Objection and dismiss Plaintiff S Complaint, or alternatively, Order Plaintiff to 4 properly serve Defendant Brewer in accordance with Pa.R.C.P. 400 and grant such other relief as the Court deems just and appropriate. Dated: 11/19/09 Respectfully Submitted, co McPartland Attorney I.D. No.: 209669 Leslie David Jacobson Attorney I.D. No.: 52673 Law Offices of Leslie David Jacobson 8150 Derry Street Harrisburg, PA 17111 717.909.5858 FAX: 717.909.7788 5 USAA CASUALTY INSURANCE IN THE COURT OF COMMON PLEAS OF COMPANY CUMBERLAND COUNTY As subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 CIVIL DIVISION Plaintiff, CIVIL ACTION NO.: V. 2008-4006 (consolidated) NIKOLAOS C. SEITZ JURY TRIAL DEMANDED 10 Poplar St. Wormleysburg, PA 17043 and REBECCA KREBS c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971-2217 And DEVON BREWER 1727 Penn St. Harrisburg, PA 17102-2331 And TYLER YENNA 200 Hidden Valley Lane Harrisburg, PA 17112-9279 Defendant, THOMAS KISER COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA VS. CIVIL ACTION NIKOLAOS SEITZ, DEVIN BREWER and REBECCA KREBS NO. 08-4832 6 CERTIFICATE OF SERVICE I, Scott McPartland, do hereby certify that a copy of the foregoing document was this day served upon the following persons in the manner indicated below: FIRST CLASS MAIL Kevin M. Blake, Esq. Bennett, Bricklin & Saltzburg LLC Five Valley Square Suite 200 512 Township Line Road Blue Bell, PA 19422 Joseph F. Rich, Esq. Cozen & O'Connor The Atrium - 3`d Floor 1900 Market Street Philadelphia, PA 19103 DATED: 11/20/09 Scott McPartland Attorney for Defendant Devon Brewer 7 FILES-OTJCE OF THILE FIR07 tMTARY 2009 NOY 20 Ply 1: 06 CUt? , k. ")UNIFY DEC 0 ? z009 (A USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. NIKOLAOS C. SEITZ, et al COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) ORDER AND NOW, this J P. day of I e c.&-44/ , 2009, after consideration of Plaintiff Thomas Kiser's Motion for Leave to File an Amended Complaint, and any response filed thereto, it is hereby ordered that Plaintiff's Motion is GRANTED. Plaintiff s Amended Complaint, attached as Exhibit A to the Motion, is deemed filed instanter. BY THE COURT: Y P" r T C ' GTAPY 2009 DEC -2 AN C: 3 5 . dop I*cs )94? X , alp A44, j J • )944Y .ICY. 1? . ?lL . Kid5 ON LEVINE de LUCA & HORST, LLC RICHARD J. BOYD, JR., ESQUIRE ,ENTIFICATION NO.: 84035 .)18 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5122 US-AA Casualty Insurance Company, a/s/o Diana R. Loyer Plaintiff(s) V. Nikolaos C. Seitz Thomas Kiser Plaintiff(s) V. Nikolaos Seitz, et al. Kathy M. Witters Plaintiff(s) V. Nikolaos Seitz, Rebecca Krebs and Devin Brewer ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CONSOLIDATED CIVIL ACTION NO: 2008-4006 JURY TRIAL DEMANDED PLAINTIFF, KATHY WITTERS' MOTION TO COMPEL DEFENDANT NIKOLAOS SEITZ TO PROVIDE ANSWERS TO DISCOVERY Plaintiff, Kathy M. Witters, by and through her undersigned counsel, Nelson, Levine, de Luca & Horst, LLC, respectfully moves this Honorable Court, pursuant to Pa.R.C.P. 4019, for an order compelling the Defendant, Nikolaso Seitz to provide answers to discovery. In support thereof, Plaintiff states the following: 1. On September 8, 2009, Plaintiff, Kathy M. Witters (hereinafter "Witters") served a Request for Production of Documents upon Defendant, Nikolaos Seitz (hereinafter "Seitz"). A copy of the correspondence is attached hereto as Exhibit "A". 2. Pursuant to Pa.R.C.P. 4003, Seitz's responses to the discovery were due within thirty (30) days. 3. Seitz failed to respond to Witters' discovery. 4. On October 13, 2009, Witters requested that Seitz provide responses to the outstanding Request for Production of Documents. A copy of the correspondence is attached hereto as Exhibit "B". 5. On October 21, 2009, in a good faith attempt to resolve this discovery dispute, Witters again requested that Seitz provide responses to the outstanding discovery requests. Seitz responded that he would provide the discovery early the following week. Copies of the emails are attached hereto as Exhibit "C". 6. On November 19, 2009, Seitz advised that he would be providing answers to the discovery. A copy of the email is attached hereto as Exhibit "D". 7. To date, despite Witters' repeated attempts to obtain the responses without Court intervention, no responses have been provided by Seitz and no extensions have been granted. 8. Witters is severely prejudiced by Seitz's continuing failure to provide responses to the outstanding discovery requests. 9. Pursuant to Pa.R.C.P. 4019, this Honorable Court is empowered to enter an Order compelling Seitz to provide all documents responsive to Witters' Request for Production of Documents. 10. Further, because Seitz has failed to provide timely answers and/or objections to Witters' discovery, Seitz must be precluded from raising any objections to the Request for Production of Documents. 11. Witters is unable to properly prepare for trial without the discovery answers. The information sought is clearly relevant and there is no valid reason for the continuing delay. 12. As set forth, Witters has sought concurrence with the rules, but Seitz has failed to provide same. 13. Judge Hess previously ruled on a Motion for Leave to File an Amended Complaint in this case. WHEREFORE, for the foregoing reasons, Plaintiff, Kathy M. Witters, requests that her Motion to Compel be granted and that an order be entered compelling Defendant, Nikolaos Seitz to provide, without objections, all documents in response to Plaintiff, Kathy M. Witters' Request for Production of Documents within ten (10) days or suffer sanctions upon further application to the Court. NELSON LEVINE de LUCA & HORST, LLC BY: ! ICHARD J. YD, JR. ESQUIRE ATTORNEYS OR PLAINTIFF Dated: December 2, 2009 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5122 USAA Casualty Insurance Company, a/s/o Diana R. Loyer Plaintiff(s) V. Nikolaos C. Seitz Thomas Kiser Plaintiff(s) V. Nikolaos Seitz, et al. Kathy M. Witters Plaintiff(s) V. Nikolaos Seitz, Rebecca Krebs and Devin Brewer ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CONSOLIDATED CIVIL ACTION NO: 2008-4006 JURY TRIAL DEMANDED BRIEF IN SUPPORT OF MOTION OF PLAINTIFF, KATHY M. WITTERS TO COMPEL DEFENDANT, NIKOLAOS SEITZ TO PROVIDE ANSWERS TO DISCOVERY FACTUAL BACKGROUND: The within action was brought by Plaintiff, Kathy M. Witters (hereinafter "Witters"), by filing a Complaint on June 24, 2009. The underlying action arises from significant property damages sustained by Witters to her residence located at 8 Poplar Street, Wormleysburg, PA 17043. Defendant, Nikolaos Seitz (hereinafter "Seitz") resided at 10 Poplar Street, Wormlesysburg, PA, with his tenants, Defendants, Rebecca Krebs and Devon Brewer. On or about January 13, 2008, a fire erupted on the second floor balcony of Seitz's home as a result of the careless disposal of smoking materials by one or all of the defendants. None of the defendants called emergency or fire officials or others after smelling smoke and becoming aware that a fire had started. As a result, the fire spread to adjoining properties, including the home of Witters and the homes of the other Plaintiffs, Diana Loyer and Thomas Kiser. All three actions were consolidated by the Court on September 16, 2009, by Judge Kevin A. Hess. ARGUMENT: On September 8, 2009, Witters served a Request for Production of Documents upon Seitz. A copy of the correspondence is attached hereto as Exhibit "A". Pursuant to Pa.R.C.P. 4003, Seitz's responses to the discovery were due within thirty (30) days. Seitz failed to respond to Witters' discovery. On October 13, 2009, Witters requested that Seitz provide responses to the outstanding Request for Production of Documents. A copy of the correspondence is attached hereto as Exhibit "B". On October 21, 2009, in a good faith attempt to resolve this discovery dispute, Witters again requested that Seitz provide responses to the outstanding discovery requests. Seitz responded that he would provide the discovery early the following week. Copies of the emails are attached hereto as Exhibit "C". On November 19, 2009, Seitz advised that he would be providing answers to the discovery. A copy of the email is attached hereto as Exhibit "D". To date, despite Witters' repeated attempts to obtain the responses without Court intervention, no responses have been provided by Seitz and no extensions have been granted. Witters is severely prejudiced by Seitz's continuing failure to provide responses to the outstanding discovery requests. Pursuant to Pa.R.C.P. 4019, this Honorable Court is empowered to enter an Order compelling Seitz to provide all documents responsive to Witters' Request for Production of Documents. Further, because Seitz has failed to provide timely answers and/or objections to Witters' discovery, Seitz must be precluded from raising any objections to the Request for Production of Documents. Witters is unable to properly prepare for trial without the discovery answers. The information sought is clearly relevant and there is no valid reason for the continuing delay. CONCLUSION: For the reasons set forth above, Plaintiff, Kathy M. Witters respectfully requests that this honorable court enter the Order provided herewith. NELSON LEVINE de LUCA & HORST, LLC BY: ICHARD J. O D, JR., SQUIRE ATTORNEYS R PLAINTIFF Dated: ?21?'IV) EXHIBIT "A" a y Diane B. Budman, Paralegal NELSON • LEVINE • do LUCA & HORST Direct: 215.358.5137 A LBUTED LIABILITY COMPANY dbudman@nldhlaw.com d H ATTORNEYS AT LAW PHILADELPHIA CHERRY HILL COLUMBUS NEWARK NEW YORK LONDON www.nldhlaw.com 518 Township Line Road Suite 300 Blue Bell, PA 19422 Phone: 215.358.5100 September 8, 2009 Fax: 215.358.5101 Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 Re: Kathy Witters v. Nikolaos Seitz, Rebecca Krebs and Devin Brewer CCP Cumberland County No.: 094259 Dear Mr. Moran: Enclosed please find Plaintiff's Request for Production Addressed to Defendant, Nikolaos Seitz. Kindly respond to same in accordance with the Pennsylvania Rules of Civil Procedure. Thank you. Very truly yours, NELSON LEVINE de LUCA & HORST, LLC Diane B. Budman, Paralegal DBB/dbb Enclosure cc: Rebecca Krebs Devin Brewer EXHIBIT "B" .« NIL NELSON • LEVINE • do LUCA & HORST H A LmTmD LIABum COMPANY ATTORNEYS AT LAW PHILADELPHIA CHERRY H[ LL COLUMBUS NEWARK NEW YORK LONDON October 13, 2009 Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 Diane B. Budman, Paralegal Direct: 215.358.5137 dbudman@nldhiaw.com www.nldhlaw.com 518 Township Line Road Suite 300 Blue Bell, PA 19422 Phone: 215.358.5100 Fax: 215.358.5101 Re: Kathy Witters v. Nikolaos Seitz, Rebecca Krebs and Devin Brewer CCP Cumberland County No.: 09-4259 Dear Mr. Moran: Kindly advise as to when we can expect to receive answers to Plaintiff's Request for Production of Documents which was served on September 8, 2009. Thank you. Very truly yours, NELSON LEVINE de LUCA & HORST, LLC -?V? t Diane B. Budman, Paralegal DBB/dbb EXHIBIT "C" Page 1 Diane Budman From: Richard Boyd Sent: Wednesday, October 21, 200910:24 AM To: Moran,Patrick J Cc: Diane Budman Subject: RE: (Matter No.[0914073]](USAA v. Seitz, Nikolaos)(File, No.[UHF42831) Witters v. Seaftz; Kiser v. Seitz What up Pat? Can you please send the discovery answers? Thanks. Rich From: Moran,Patrick ] [mailto:PJMORAN@travefers.com] Sent: Wednesday, September 09, 2009 2:20 PM To: Richard Boyd; 'Rich, Joseph F.'; blake@bbs-law.com' Cc: Paugh,Constanoe; 'Fiedler, Michele D.' Subject. RE: {Matter No.[0914073]1(USAA v. Seitz, NikdaosHI'lle No.[UHF4283]) Witters v. Seaitz; Kiser v. Seitz Rich I will provide you responses to your requests for production before the deposition. Mr. Seitz can't get off work for a deposition during the day, and given the present state of the economy 1 am trying to accommodate his schedule so the can avoid issues with his employer. Also,1 have three kids in soccer and coach a team, so I do understand your situation but can't do the deposition during the day. Maybe we do the Troopers deposition on the 81h or 91 at 2 o'clock and conduct Mr. Seitz's deposition immediately following. Or, we can do Mr. Seitz 's deposition in the early evening on the 811 and do the Troopers deposition the morning of the 9h'. I do not intend to notice the Troopers deposition, so one of the Plaintiff's needs to coordinate that portion I'll circulate the motion to consolidate shortly. Sincerely, Patrick J. Moran, Esquire 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 215-274-1701 From. Richard Boyd [mafito:RBoyd@NLDHLAW.COM] Sent Wednesday, September 09, 20091:51 PM To: Rich, Joseph F.; Moran,Patrfck 1; blake@bbs--law.com Cc: Paugh,Constance; Fiedler, Michele D. Subject: RE: (Matter No.[0914073]1(USAA v. Seitz, NikolaosHFile No.[UHF4283]1 Witters v. Seaitz; Kiser v. Seitz The 8th or 9th work for me, but not the 5th Patrick: I don't mind doing the deps quickly, but I'll need answers to my requests for production no less than a week before the dep. Also, is there a good reason for why it needs to be at 5:30? 1 have 2 kids in soccer and I am the coach for one of the teams. We have games and practices most evenings. So, unless there is a compelling reason, let's forget the 5:30 pm stuff. Thanks. From: Rich, Joseph F. [malito:JRwh@cozen.com) Sent Wednesday, September 09, 20091:36 PM To: Moran,Pabick l; Richard Boyd; blake@bbs--law.com Cc: Paugh,Constance; Fiedler, Michele D. Subject: RE: (Matter No.[0914073]1{USAA v. Seitz, NikolaosHFile No.[UHF4283]1 Witters v. Seaffz; Kiser v. Seitz Patrick, 1 am not currently open on the 5th but may be able to re schedule another matter. I would also suggest October 8th or 9th. Also, f would like to depose Trooper Keebaugh in early October as well an propose either Oct 8 or 9. Please let me know if these dates work so that 1 can send the notice and subpoena. Joe Notice: To comply with certain U.S. Treasury regulations, we Inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this e-mail, including attachments, is not intended or written to be used. and cannot be used. by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service. 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Diane Budman Page 1 of 1 From: Moran,Patrick J [PJMORAN@travelers.com] Sent: Wednesday, October 21, 2009 10:25 AM To: Richard Boyd Cc: Diane Budman Subject: {Matter No.[0980290]1{Witters, Kathy M. v. Seitz, Nikoklaos et al]{File No.[278 LR UHF4283 E]1 Rich: I received your request for the discovery material. I am short handed at the moment, but should be able to get the information early next week. Sorry for the delay. Sincerely, Patrick J. Moran, Esquire 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 215-274-1701 ---------------------------------------- This communication, including attachments, is confidential, may be subject to 12/2/2009 EXHIBIT "D" Diane Budman Page 1 of 1 From: Richard Boyd Sent: Thursday, November 19, 2009 4:18 PM To: Diane Budman Subject: FW: (Matter No.[0980290]){Witters, Kathy M. v. Seitz, Nikoklaos et al]{File No.[278 LR UHF4283 E]] FYI. From: Moran,Patrick J. [mailto:P)MORAN@travelers.com] Sent: Thursday, November 19, 2009 4:07 PM To: Richard Boyd Cc: Roy,Lisa A Subject: {Matter No.[0980290]J{Witters, Kathy M. v. Seitz, Nikoklaos et al}{File No.[278 LR UHF4283 E]} Rich Lisa Roy from my office will be getting out the discovery you requested. The delay is on me, now that it is in Lisa's hands it will be completed timely. Talk with you soon. Sincerely, Patrick J. Moran, Esquire 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 215-274-1701 ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ This communication, including attachments, is confidential, may be subject to 12/2/2009 NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5122 USAA Casualty Insurance Company, a/s/o Diana R. Loyer Plaintiff(s) V. Nikolaos C. Seitz Thomas Kiser Plaintiff(s) V. Nikolaos Seitz, et al. Kathy M. Witters Plaintiff(s) V. Nikolaos Seitz, Rebecca Krebs and Devin Brewer ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CONSOLIDATED CIVIL ACTION NO: 2008-4006 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Richard J. Boyd, Jr., Esquire, hereby certify that a true and correct copy of Plaintiff, Kathy M. Witters' Motion to Compel Defendant, Nikolaos Seitz to Answer Discovery was served on December 2, 2009, upon counsel listed below by United States Mail, postage prepaid: Patrick J. Moran, Esquire Joseph F. Rich, Esquire Law Offices of William J. Ferren & Associates Cozen O'Connor 10 Sentry Parkway, Suite 301 1900 Market Street Blue Bell, PA 19422 Philadelphia, PA 19103 Kevin M. Blake, Esquire Scott McPartland, Esquire Bennett, Bricklin & Saltzburg, LLC Law Offices of Leslie David Jacobson 512 East Township Line Road, Suite 200 8150 Derry Street, Suite A Blue Bell, PA 19422 Harrisburg, PA 17111 -i Rebecca Krebs c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971 Dated: December 2, 2009 Devon Brewer 1727 Penn Street Harrisburg, PA 17102 NELSON LEVINE de LUCA & HORST, LLC BY: A'4? A A'V? I CHARD J. B , JR., QUIRE ATTORNEYS FOR PLAINTIFF RLED-OfflM OF THE FROTHMTARY ZU9 DEC -7 F%052 1 THOMAS, THOMAS & HAFER, LLP by: Brooks R. Foland, Esquire I.D. No. 70102 305 North Front Street 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 (717) 237-7105 fax bfoland@tthlaw.com USAA CASUALTY INSURANCE COMPANY a/s/o DIANA R. LOYER, et al., Plaintiffs vs. NIKOLAOS SEITZ, et al. Defendants Counsel for Defendant Rebecca Krebs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-4006 (Consolidated Action) JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter our appearance on behalf of Defendant Rebecca Krebs in the above matter. Respectfully submitted, by: THOMAS, THOMAS & HAFER, LLP BR5"6TCs R. Foil Fq uir? I.D. No. 70102 305 North Front Street, 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 CERTIFICATE OF SERVICE AND NOW, this (/A ay of _ 200_?I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Kevin M. Blake, Esq. Bennett, Bricklin & Saltzburg, LLP Five Valley Square Suite 200 512 Township Line Road Blue Bell, PA 19422 Patrick J. Moran, Esq. William J. Ferren & Associates Ten Sentry Parkway, Suite 301 Blue Bell, PA 19422 Joseph F. Rich, Esq. Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Richard J. Boyd, Jr., Esq. Nelson Levine DeLuca & Horst LLC 518 Township Line Road Ste. 300 Blue Bell, PA 19422 Coleen M. Polek 759897.1 FlLW?FICE OF THE T 2M DEC -8 AM 9: 07 CUM F-.L? 4u GOB PENNSYLVANIA COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer Plaintiff V. NIKOLAOS C. SEITZ, Defendant. Attorneys for Plaintiff COURT OF COMMON PLEAS Cumberland County CIVIL ACTION NO.: 08-4006 (Consolidated Action) PLAINTIFF'S USAA CASUALTY INSURANCE COMPANY'S OBJECTION TO DEFENDANT BREWER'S PRELIMINARY OBJECTION TO COMPLAINT The Complaint to which Defendant Brewer has filed her Preliminary Objections is that of co-Plaintiff Thomas Kizer in this consolidated action and not that of Plaintiff USAA Casualty Insurance Company (hereinafter "USAA"). 2. On July 7, 2008, Plaintiff USAA filed a Complaint against Defendant Nicholas Seitz only and did not name Defendant Brewer as a party to its Complaint at that time. 3. On October 29, 2009, after the parties conducted additional discovery, Plaintiff USAA filed a Motion to Amend its Complaint to name Defendant Brewer. 4. On October 30, 2009, the Court entered an Order allowing Plaintiff USAA to file an Amended Complaint naming Defendant Brewer as an additional defendant. [See Order, attached hereto as Exhibit "A"] 5. On November 9, 2009, Plaintiff USAA filed its Amended Complaint. [See Amended Complaint, attached hereto as Exhibit `B"]. 6. To date, Plaintiff USAA has not yet served its Amended Complaint on Defendant Brewer. 7. As set forth above, Defendant Brewer's Preliminary Objections to Plaintiffs Complaint are in appropriately directed to Plaintiff USAA and do not apply to Plaintiff USAA's Amended Complaint. 8. Furthermore, although Plaintiff USAA's counsel has conferred with Defendant Brewer's counsel, Scott McPartland, Esquire, to request that Defendant Brewer withdraw the Preliminary Objections as they are inappropriately addressed to Plaintiff USAA, Defendant Brewer has not withdrawn the Preliminary Objections. 9. For the foregoing reasons, Plaintiff objects to the Preliminary Objections filed by Defendant Brewer and states that they are inapplicable to Plaintiff USAA's Amended Complaint. Respectfully Submitted, COZEN O'CONNOR Dated: l a l &(4 By: ?- . JOS H rF?.RICH, ESQUIRE 19 A Market Street Philadelphia, PA 19103 215-665-7285 Attorneys for Plaintiff USAA Casualty Insurance Company, as subrogee of Diana R. Loyer 2 CERTIFICATE OF SERVICE I, Joseph F. Rich, hereby certify that on December, 2009,1 served a true and correct copy of Plaintiff s Objection to Defendant Brewer's Preliminary Objections to Plaintiff's Complaint on the following counsel of record and parties: Scott McPartland, Esquire Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111-5260 Attorneys for Defendant Devon Brewer Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Attorneys for Defendant Nikoloas Seitz Kevin M. Blake, Esquire Bennett, Bricklin & Saltzburg, LLP Five Valley Square, Suite 200 512 Township Line Road Blue Bell, PA 19422 Attorneys for co-Plaintiff Thomas Kizer Richard J. Boyd, Jr., Esquire Nelson Levine de Luca & Horst, LLC 518 Township Line Road, Suite 300 Blue Bell, PA 19422 Attorneys for co-Plaintiff Kathy M. Witters Brooks Foland, Esquire Thomas, Thomas & Haefer, LLP 305 North Front Street Harrisburg, PA 17108 Attorneys for Defendant Rebecca Krebs J SEPH F. RICH, ESQUIRE Exhibit A COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 OCT 3 0 2009 tn Attorneys for Plaintiff USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer Plaintiff V. NIKOLAOS C. SEITZ, Defendant. COURT OF COMMON PLEAS Cumberland County CIVIL ACTION NO.: 08-4006 (Consolidated Action) ORDER AND NOW, this3Aay of , 2009, after consideration of Plaintiff USAA Casualty Insurance Company's Motion For Leave to File an Amended Complaint, and any response filed thereto, it is hereby ORDERED AND DECREED that Plaintiff's Motion is GRANTED. Plaintiff's Amended Complaint, attached as Exhibit "A" to the Motion, is deemed filed instanter. BY THE COURT: T SCOP'S FROM RECO t 94 Im 320d car, a cm , ft. s ttl:7177 Exhibit B COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3rd Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, as subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 Plaintiff, V. : NIKOLAOS C. SEITZ, 10 Poplar St. Wormleysburg, PA 17043 and REBECCA KREBS c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971-2217 and DEVON BREWER 1727 Penn St. Harrisburg, PA 17102-2331 and TYLER YENNA 200 Hidden Valley Lane Harrisburg, PA 17112-9279 Defendants. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION CIVIL ACTION NO.: 2008-4006 (consolidated) JURY TRIAL DEMANDED 1 NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Com- plaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT 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 32 South Bedford Street Carlisle, PA 17013 800-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan rods adelante en las siguientes pdginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparencencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacibn o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin rods aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE 2 OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 800-990-9108 COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 The Atrium - 3rd Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 Attorneys for Plaintiff USAA CASUALTY INSURANCE IN THE COURT OF COMMON PLEAS COMPANY, CUMBERLAND COUNTY as subrogee of Diana R. Loyer 9800 Fredericksburg Rd. San Antonio, TX 78288 CIVIL DIVISION Plaintiff, CIVIL ACTION NO.: V. 2008-4006 (consolidated) NIKOLAOS C. SEITZ, JURY TRIAL DEMANDED 10 Poplar St. Wormleysburg, PA 17043 and REBECCA KREBS c/o Salt Air Kitchen 50 Wilmington Avenue Rehoboth, DE 19971-2217 and DEVON BREWER 1727 Penn St. : Harrisburg, PA 17102-2331 and : TYLER YENNA : 200 Hidden Valley Lane Harrisburg, PA 17112-9279 Defendants. COMPLAINT Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, by and through its counsel, hereby demands judgment against Nikolas C. Seitz, Rebecca Krebs, Devon Brewer and Tyler Yenna and, upon information and belief, complains against defendants as follows: PARTIES 1. Plaintiff, USAA Casualty Insurance Company (hereinafter "USAA"), is a corporation organized under the laws of the State of Texas, with a principal place of business located at 9800 Fredericksburg Road, San Antonio, TX 78288. 2. At all times material hereto, Plaintiff USAA was duly authorized to issue policies of insurance within the Commonwealth of Pennsylvania. 3. Defendant, Nikolaos C. Seitz ("Seitz"), is, upon information and belief, a resident of Pennsylvania, with a principal residence located at 10 Poplar Street, Wormleysburg, PA. 4. Defendant, Rebecca Krebs ("Krebs"), is, upon information and belief, a resident of Pennsylvania, with a temporary residence currently located at Salt Air Kitchen, 50 Wilmington Avenue, Rehoboth, DE 19971-2217. 5. Defendant, Devon Brewer ("Brewer"), is, upon information and belief, a resident of Pennsylvania, with a principal residence located at 1727 Penn St., Harrisburg, PA 17102-2331. 6. Defendant, Tyler Yenna ("Yenna"), is, upon information and belief, a resident of Pennsylvania, with a principal residence located at 200 Hidden Valley Lane, Harrisburg, PA 1711209279. 2 JURISDICTION AND VENUE 7. The matter in controversy exceeds $50,000.00, the cause of action arose in Cumberland County, and the matter is otherwise within the jurisdiction of this Court. FACTUAL ALLEGATIONS 8. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 9. On or around January 13, 2008, Plaintiff's insured, Diana R. Loyer, owned and resided at property located at 6 Poplar Street, Wormleysburg, PA 17043 (hereinafter "the subject property"). 10. At all times material hereto, Plaintiff insured the subject property of Diana R. Loyer and other contents and property located therein. 11. On or around January 12 & 13, 2008, Defendant Seitz owned and resided at 10 Poplar Street, Wormleysburg, PA 17043, which is situated adjacent to and/or near the subject property (hereinafter "the adjacent property"). 12. On or around January 12 & 13, 2008, Defendants Brewer and Krebs resided at the adjacent property with the permission of Defendant Seitz. 13. On or around January 12 & 13, 2008, Defendant Brewer resided in an apartment located in the rear of the second floor of the adjacent property. 14. On or around January 12 & 13, 2008, Defendant Krebs resided in an apartment located in the front of the second floor of the adjacent property. 15. On or around the evening of January 12, 2008 and/or the early morning hours of January 13, 2008, Defendant Yenna was present at the adjacent property with the permission of Defendant Seitz and/or with the permission of Defendant Brewer. 3 16. On or around January 12 & 13, 2008, Defendant Seitz allowed Defendants Krebs, Brewer and/or Yenna and/or other residents, tenants, invitees, guests, servants, agents, workmen and/or employees to use cigarettes and/or other smoking materials at the adjacent property. 17. On or around January 13, 2008, there was a fire at the adjacent property (hereinafter "the fire'). 18. On or around January 13, 2008, Defendants Seitz and Defendant Krebs learned of and/or were notified of the fire at the adjacent property before the fire and/or smoke from the fire spread to nearby and adjacent homes and structures, including the subject property of Plaintiff's insured. 19. On or on January 13, 2008, after Defendants Seitz and Defendant Krebs learned of and/or were notified of the fire at the adjacent property, the fire and smoke from the fire spread from the adjacent property to nearby and adjacent homes and structures, including the subject premises of Plaintiff's insured. 20. The fire at the adjacent property spread to and caused damage and destruction to the subject property of Plaintiff's insured, which caused Plaintiff's insured to sustain damage to its property and contents. 21. Pursuant to the terms of the above-referenced insurance policy with its insured, Plaintiff USAA has made payments to its insured in the amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32) and expects to make additional payments to its insured for the damages sustained as a result of the fire. 4 22. In accordance with common law principles of legal and equitable subrogation, Plaintiff USAA is subrogated to the rights of its insured with respect to the damages compensable under the policy. COUNT I - NEGLIGENCE v. SEITZ 23. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 24. The fire and resulting damages to Plaintiff's insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Seitz and/or his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees, acting both jointly and severally with the remaining co-defendants, in: (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; (c) causing the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to ensure that his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees at the adjacent property properly used, extinguished, and/or disposed of cigarettes and other smoking materials; (f) allowing and permitting his residents, tenants, invitees, guests, servants, agents, workmen and/or employees to improperly use, extinguish, and/or dispose of cigarettes and other smoking materials at the subject premises; (g) failing to properly warn, train, oversee and supervise his residents, tenants, invitees, guests, servants, agents, workmen and/or employees on the 5 proper use, disposal and extinguishment of cigarettes and other smoking materials so as to avoid causing a fire; (h) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (i) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (j) failing to properly inspect and examine the adjacent property for the existence of a fire after receiving notice of the fire; (k) failing to properly extinguish the fire after its discovery; (1) failing to detect and extinguish the fire; (m) failing to take proper and adequate steps to notify the local Fire Department and/or local authorities of the existence of the fire at the adjacent property after its discovery and/or after receiving notice of the existence of the fire from his residents, tenants, invitees, guests, servants, agents, workmen, and/or employees; and (n) otherwise failing to use due care under the circumstances. 25. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness; and/or negligent acts and/or omissions of Defendant Seitz, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's insured to incur other damages resulting from the fire. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas C. Seitz, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT II - PRIVATE NUISANCE v. SEITZ 26. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 6 27. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 28. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 29. As the source of the private nuisance, Defendant Seitz is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas C. Seitz, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT III - TRESPASS v. SEITZ 30. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 31. Plaintiffs insured did not consent to the spread of the fire and smoke from the fire to her subject property. 32. As a result of the spread of the fire and smoke to Plaintiffs insured's subject property, Defendant Seitz unlawfully trespassed upon Plaintiff's insured's property. 33. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Seitz is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Nikolas C. Seitz, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT IV - NEGLIGENCE v. KREBS 34. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 35. The fire and resulting damages to Plaintiff's insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Krebs, acting both jointly and severally with the remaining co- defendants, in: (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; (c) causing the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to ensure that her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees at the adjacent property properly 8 used, extinguished, and/or disposed of cigarettes and other smoking materials; (f) allowing and permitting her residents, tenants, invitees, guests, servants, agents, workmen and/or employees to improperly use, extinguish, and/or dispose of cigarettes and other smoking materials at the subject premises; (g) failing to properly warn, train, oversee and supervise her residents, tenants, invitees, guests, servants, agents, workmen and/or employees on the proper use, disposal and extinguishment of cigarettes and other smoking materials so as to avoid causing a fire; (h) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (i) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (j) failing to properly inspect and examine the adjacent property for the existence of a fire after receiving notice of the fire; (k) failing to properly extinguish the fire after its discovery; (1) failing to detect and extinguish the fire; (m) failing to take proper and adequate steps to notify the local Fire Department and/or local authorities of the existence of the fire at the adjacent property after its discovery and/or after receiving notice of the existence of the fire from her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees; and (n) otherwise failing to use due care under the circumstances. 36. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, and/or negligent acts and/or omissions of Defendant Krebs, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's insured to incur other damages resulting from the fire. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Rebecca Krebs, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars 9 and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT V -- PRIVATE NUISANCE v. KREBS 37. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 38. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 39. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 40. As the source of the private nuisance, Defendant Krebs is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Rebecca Krebs, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT VI - TRESPASS v. KREBS 41. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 10 42. Plaintiff s insured did not consent to the spread of the fire and smoke from the fire to her subject property. 43. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant Krebs unlawfully trespassed upon Plaintiffs insured's property. 44. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Krebs is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Rebecca Krebs, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT VII - NEGLIGENCE v. BREWER 45. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 46. The fire and resulting damages to Plaintiff's insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Brewer, acting both jointly and severally with the remaining co- defendants, in: (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; 11 (c) causing the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to ensure that her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees at the adjacent property properly used, extinguished, and/or disposed of cigarettes and other smoking materials; (f) allowing and permitting her residents, tenants, invitees, guests, servants, agents, workmen and/or employees to improperly use, extinguish, and/or dispose of cigarettes and other smoking materials at the subject premises; (g) failing to properly warn, train, oversee and supervise her residents, tenants, invitees, guests, servants, agents, workmen and/or employees on the proper use, disposal and extinguishment of cigarettes and other smoking materials so as to avoid causing a fire; (h) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (i) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (j) failing to properly inspect and examine the adjacent property for the existence of a fire after receiving notice of the fire; (k) failing to properly extinguish the fire after its discovery; (1) failing to detect and extinguish the fire; (m) failing to take proper and adequate steps to notify the local Fire Department and/or local authorities of the existence of the fire at the adjacent property after its discovery and/or after receiving notice of the existence of the fire from her residents, tenants, invitees, guests, servants, agents, workmen, and/or employees; and (n) otherwise failing to use due care under the circumstances. 47. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, and/or negligent acts and/or omissions of Defendant Brewer, the fire described above occurred and resulted in damage and destruction to Plaintiff's insured's property and caused Plaintiff's insured to incur other damages resulting from the fire. 12 WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Devon Brewer, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT VIII -- PRIVATE NUISANCE v. BREWER 48. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 49. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 50. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 51. As the source of the private nuisance, Defendant Brewer is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Devon Brewer, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. 13 COUNT IX - TRESPASS v. BREWER 52. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 53. Plaintiff's insured did not consent to the spread of the fire and smoke from the fire to her subject property. 54. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant Brewer unlawfully trespassed upon Plaintiff's insured's property. 55. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Brewer is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Devon Brewer, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT X - NEGLIGENCE v. YENNA 56. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 57. The fire and resulting damages to Plaintiff's insured were the direct and proximate result of the negligence, carelessness, recklessness and negligent acts and/or omissions of Defendant Yenna, acting both jointly and severally with the remaining co- defendants, in: 14 (a) failing to properly and adequately use cigarettes, other smoking materials and/or combustible items at the adjacent property; (b) failing to take proper and adequate safety precautions while using cigarettes, other smoking materials and/or combustible items at the adjacent property; (c) causing or contributing to the fire by improperly disposing of and/or improperly extinguishing cigarettes and other smoking materials; (d) failing to properly and adequately dispose of and/or extinguish smoking materials or combustible items at the adjacent property; (e) failing to take adequate and necessary steps to protect the subject property of Plaintiff's insured from the spread of the fire; (f) causing and/or permitting the fire to spread throughout the adjacent property and to the subject property of Plaintiff's insured; (g) failing to detect and extinguish the fire; and (h) otherwise failing to use due care under the circumstances. 58. As a direct and proximate result of the aforesaid negligence, carelessness, recklessness, and/or negligent acts and/or omissions of Defendant Yenna, the fire described above occurred and resulted in damage and destruction to Plaintiffs insured's property and caused Plaintiff s insured to incur other damages resulting from the fire. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Tyler Yenna, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT 11 -- PRIVATE NUISANCE v. YENNA 59. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 15 60. The spread of the fire and smoke from the adjacent property to Plaintiff's insured's subject property greatly interfered with Plaintiff's insured's use and enjoyment of her property, and has caused substantial damages and significant harm to Plaintiff's insured. 61. The spread of the fire and smoke to Plaintiff's insured's subject property unlawfully interfered with Plaintiff's insured's use and enjoyment of the subject property, thereby creating a private nuisance. 62. As the source of the private nuisance, Defendant Yenna is responsible for the significant harm to Plaintiff's insured, the damage and destruction of Plaintiff's insured's subject property, and the additional expenses and economic losses incurred as a result thereof. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Tyler Yenna, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. COUNT XII - TRESPASS v. YENNA 63. Plaintiff incorporates the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length. 64. Plaintiff's insured did not consent to the spread of the fire and smoke from the fire to her subject property. 65. As a result of the spread of the fire and smoke to Plaintiff's insured's subject property, Defendant Yenna unlawfully trespassed upon Plaintiff's insured's property. 16 66. As a direct and proximate result of the unlawful trespass, Plaintiff's insured suffered substantial damage to her real, personal and business property and incurred other economic losses for which Defendant Yenna is legally liable. WHEREFORE, Plaintiff, USAA Casualty Insurance Company, as subrogee of Diana R. Loyer, hereby demands that judgment be entered in its favor and against Defendant, Tyler Yenna, in an amount of Two Hundred Twenty Five Thousand and Twenty One Dollars and Thirty Two Cents ($225,021.32), together with prejudgment interest, damages for delay, the cost of this action, and such other and further relief as deemed just and proper under the law. Respectfully submitted, COZEN AND O'CONNOR J EPH F. RICH, ESQUIRE ttorney I.D. No.: 92067 The Atrium - 3rd Floor 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 Attorneys for Plaintiff Dated: C-1 ?a 6 e ?` ? , a Uv ? 17 VERIFICATION 1. Joseph F. Rich, Esquire, herby state that I am counsel for the Plaintiff, USAA Casualty Insurance Company, in this action and state that Plaintiff's representative is outside the jurisdiction of the court and a verification cannot be obtained within the time allowed for filing this Amended Complaint and that the statements made in the foregoing Amended Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. Kse-ph F. Rich Dated: 18 ?? r?1_^ ? f .. .. ? Jr .?' ? ? `.? ..1 ?„.:? l?? ;' ?? r"? v? ? ..: RLED-CF -'E OF THE PR OTHIONOTAPY 2009 DEC -8 AM 11: 14 BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 ATTORNEY FOR: Plaintiff Kiser FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COURT OF COMMON PLEAS OF COMPANY, a/s/o Diana R. Loyer, et al CUMBERLAND COUNTY, PA. VS. CIVIL ACTION NIKOLAOS C. SEITZ, et al NO. 08-4006 (Consolidated Action) PLAINTIFF, THOMAS KISER'S PRELIMINARY OBJECTIONS TO DEFENDANT, DEVON BREWER'S PRELIMINARY OBJECTIONS Plaintiff, Thomas Kiser (hereinafter "Plaintiff'), by and through his undersigned counsel, hereby responds to Defendant, Devon Brewer's Preliminary Objections and avers the following: Pursuant to this Honorable Court's Order of December 1, 2009, Plaintiff Kiser's Amended Complaint was deemed filed on December 1, 2009. A copy of that order is attached as Exhibit A. Therefore, the Preliminary Objections filed by Defendant Brewer to Plaintiff Kiser's original Complaint are moot. WHEREFORE, Plaintiff, Thomas Kiser respectfully requests that this Honorable Court dismiss Defendant Brewer's Preliminary Objections as moot. BENNETT, BRICKLIN & SALTZBURG LLC 1 BY KEVIN M.-BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser Wiblt A _ OPY USAA CASUALTY.INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. NIKOLAOS C. SEITZ, et al COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO, 084006 (Consolidated Action) ORDER AND NOW, this day of 2009, after consideration of Plaintiff Thomas Kiser's Motion for Leave to File an Amended Complaint, and any response filed thereto, it is hereby ordered that Plaintiff's Motion is GRANTED. Plaintiff s Amended Complaint, attached as Exhibit A to the Motion, is deemed filed instanter. BY THE COURT: VERIFICATION I, Kevin M. Blake, Esquire, do hereby verify that I am the attorney for the Plaintiff, Thomas Kiser in the above-captioned action and that the facts set forth in the foregoing Preliminary Objections of Plaintiff Keiser to the Preliminary Objections of Defendant Brewer are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. - f:--:: ?_ KEVIN M. BLAKE DATE: December 8, 2009 r M BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 084006 (Consolidated Action) CERTIFICATE OF SERVICE I, KEVIN M. BLAKE, Esquire, do hereby certify that a true and correct copy of the foregoing Preliminary Objections of Plaintiff Keiser to the Preliminary Objections of Defendant Brewer has been served upon the following persons: Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Attorneys for Defendant Nikoloas Seitz Joseph F. Rich, Esquire Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Attorneys for Co-Plaintiff USAA a/s/o Diana R. Loyer Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst, LLC 518 Township Line Road, Ste. 300 Blue Bell, PA 19422 Attorneys for Co-Plaintiff Kathy M. Witters Scott McPartland Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111 717.909.5858 Attorneys for Devon Brewer Devon Brewer 1727 Penn St. Harrisburg, PA 17102-2331 Brooks Foland, Esquire THOMAS, THOMAS & HAFER, LLP 305 North Front Street Harrisburg, PA 17108 Attorneys for Defendant Rebecca Krebs Tyler Yenna 200 Hidden Valley Lane Harrisburg, PA 17112 VIA: United States Regular First Class Mail on December 8, 2009 BENNETT, BRICKLIN & SALTZBURG LLC BY KE LAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser R1.ED it'FH'C'E OF THE PSOT PON TARY 2009 DEC -9 PM 2= 57 cumb d ; +Jt?ttl( PENN SYLtrMto NELSON LEVINE de LUCA & HORST, LLC BY: RICHARD J. BOYD, JR., ESQUIRE IDENTIFICATION NO.: 84035 518 TOWNSHIP LINE ROAD, SUITE 300 BLUE BELL, PA 19422 (215) 358-5122 USAA Casualty Insurance Company, a/s/o Diana R. Loyer Plaintiff(s) V. Nikolaos C. Seitz Thomas Kiser Plaintiff(s) V. Nikolaos Seitz, et al. Kathy M. Witters Plaintiff(s) V. Nikolaos Seitz, et al Defendan ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CONSOLIDATED CIVIL ACTION NO: 2008-4006 JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW, this 10 day of -D ? , 2009, upon consideration of the Motion of Plaintiff, Kathy Witters, to Compel Defendant, Nikolaos Sietz, to provide answers to discovery, it is hereby ordered that: (1) a RULE is hereby issued upon Defendant to SHOW CAUSE WHY the relief as set forth in the foregoing Motion should not be granted. (2) the Defendant, Nikolaos Seitz shall file an answer to the Motion within Z- o days of this date; (3) the Motion shall be decided under Pa.R.C.P. No. 206.7: /6 (4) argument shall be held on / day of 2099, Courtroom No. q at 10 ' o l ock am/pu. BY THE COURT: OF PR i u `tO ARY 2009 DEC 10 FM 12: 02 JNTY HN` S, (LVA-'l,i BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al Vs. NIKOLAOS C. SEITZ, et al TO THE WITHIN NAMED Parties YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED Amended Complaint WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) CIVIL ACTION AMENDED COMPLAINT Plaintiff, Thomas Kiser (hereinafter "Plaintiff'), by and through his undersigned counsel, hereby complains of Defendants and, upon information and belief, alleges the following: 1. Plaintiff is an adult individual currently residing at 12 Poplar Street, Wormleysburg, Pennsylvania 17043. 2. On or about January 13, 2008 Plaintiff owned and resided at the residence located at 12 Poplar Street, Wormleysburg, Pennsylvania 17043. 3. Defendants Nikolaos Seitz, Devin Brewer and Rebecca Krebs are adult individuals who resided at 10 Poplar Street, Wormleysburg, Pennsylvania 17043 on January 13, 2008. 4. Defendant Tyler Yenna was present at 10 Poplar Street, Wormleysburg, Pennsylvania 17043 on or about January 12 and/or 13, 2008. 5. On or about January 13, 2008 Defendant Nikolaos Seitz owned the residence located at 10 Poplar Street, Wormleysburg, Pennsylvania 17043 (hereinafter referred to as "subject premises") and resided in the first and third floors of same. 6. On or about January 12 and 13, 2008 Defendant Devin Brewer resided in an apartment located in the rear of the second floor of the subject premises as a tenant of Defendant Seitz. 7. On or about January 12 and 13, 2008 Defendant Rebecca Krebs resided in an apartment located in the front of the second floor of the subject premises as a tenant of Defendant Seitz. 8. On or about January 12 and/or 13, 2008 Defendant Tyler Yenna, although not regularly residing at the subject premises, was present on the second floor porch area of the subject premises, where the fire is believed to have originated. 9. On or about January 12 and 13, 2008 Defendant Seitz allowed his tenants and their guests to smoke cigarettes in an area that was unsafe for that activity. 10. On or about January 13, 2008, a fire occurred on the second floor balcony of the subject premises, as a result of the careless disposal of smoking materials by one or all of the Defendants. 11. On or about January 13, 2008 Defendant Nikolaos Seitz, after arriving at the subject premises between 1:00 p.m. and 1:30 p.m. began to detect the odor of burning wood and subsequently searched the subject premises, including the basement in which he observed a smoke condition. 12. On or about January 13, 2008 Defendant Rebecca Krebs, after awakening in her apartment at the subject premises at approximately 2:00 p.m. and immediately beginning to smell 2 smoke, discussed her suspicions with Defendant Nikolaos Seitz, who informed her that he was unable to locate the source of the smell, and then returned to her apartment to take a shower. 13. None of the Defendants called emergency or fire officials after smelling smoke. 14. The above-referenced fire spread throughout the subject premises and subsequently spread to Plaintiff's residence located at 12 Poplar Street, Wormleysburg, Pennsylvania 17043, causing substantial fire, smoke, and water damage. 15. As a direct and proximate result of the fire, Plaintiff sustained damages to his premises and personal property, as well as various other costs for alternative living expenses. WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. COUNT I- NEGLIGENCE Thomas Kiser vs. Nikolaos Seitz 16. Plaintiff, Thomas Kiser, incorporates by reference the averments set forth in paragraphs 1 through 15 above as though each were set forth at length herein. 17. The above-referenced fire and associated damages suffered by Plaintiff were proximately caused by the carelessness, negligence, recklessness, negligent acts and/or omissions of Defendant Nikolaos Seitz, acting both jointly and severally with the remaining Co-Defendants, in the following: (a) failing to inspect and/or test smoke detection devices in the subject premises; (b) failing to recommend and/or take other necessary and appropriate steps to ensure the smoke detection devices were in proper working condition; (c) failing to take all precautions necessary under the circumstances to safeguard the premises from the risk of fire; (d) failing to ensure the safety of the premises from the risk of fire through the lease agreement with tenants; (e) failing to contact the proper authorities after observing a smoke condition in the subject premises; (f) failing to take necessary and appropriate steps to warn tenants of a possible fire after observing the smoke condition; (g) leasing to a tenant who carelessly and improperly disposed of smoking material at the subject premises which Defendant knew or should have known created an unreasonable risk of harm to the subject premises; (h) allowing tenants and their guests to smoke cigarettes in an area that was inappropriate and unsafe for such activities; and (i) otherwise failing to use due care under the circumstances in ways that may be further revealed during the course of discovery. 18. Plaintiff's damages were caused in no way by the actions or inactions of Plaintiff, rather all of Plaintiff's losses were caused by the carelessness, negligence, and/or recklessness of Defendant Seitz, as set forth above. WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. COUNT II- NEGLIGENCE Thomas Kiser vs. Devin Brewer 19. Plaintiff, Thomas Kiser, incorporates by reference the averments set forth in paragraphs 1 through 18 above as though each were set forth at length herein. 20. The above-referenced fire and associated damages suffered by Plaintiff were proximately caused by the carelessness, negligence, recklessness, negligent acts and/or omissions of Defendant Devin Brewer, acting both jointly and severally with the remaining Co-Defendants, 4 in the following: (a) improperly disposing of smoking material at the subject premises which Defendant knew or should have known created an unreasonable risk of harm to the subject premises; (b) failing to inspect and/or test smoke detection devices in the subject premises; (c) failing to take all precautions necessary under the circumstances to safeguard the premises from the risk of fire; (d) failing to make sure the cigarette was not lit before it was disposed of, and (e) otherwise failing to use due care under the circumstances in ways that may be further revealed during the course of discovery. 21. Plaintiff's damages were caused in no way by the actions or inactions of Plaintiff, rather all of Plaintiff's losses were caused by the carelessness, negligence, and/or recklessness of Defendant, as set forth above. WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. COUNT III- NEGLIGENCE Thomas Kiser vs. Rebecca Krebs 22. Plaintiff, Thomas Kiser, incorporates by reference the averments set forth in paragraphs 1 through 21 above as though each were set forth at length herein. 23. The above-referenced fire and associated damages suffered by Plaintiff were proximately caused by the carelessness, negligence, recklessness, negligent acts and/or omissions of Defendant Rebecca Krebs, acting both jointly and severally with the remaining Co- Defendants, in the following: (a) improperly disposing of smoking material at the subject premises which Defendant knew or should have known created an unreasonable risk of harm to the subject premises; (b) failing to inspect and/or test smoke detection devices in the subject premises; (c) failing to take all precautions necessary under the circumstances to safeguard the premises from the risk of fire; (d) failing to make sure the cigarette was not lit before it was disposed of, and (e) otherwise failing to use due care under the circumstances in ways that may be further revealed during the course of discovery. 24. Plaintiff's damages were caused in no way by the actions or inactions of Plaintiff, rather all of Plaintiff s losses were caused by the carelessness, negligence, and/or recklessness of Defendant, as set forth above. WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. COUNT IV- NEGLIGENCE Thomas Kiser vs. Tyler Yenna 25. Plaintiff, Thomas Kiser, incorporates by reference the averments set forth in paragraphs 1 through 24 above as though each were set forth at length herein. 26. The above-referenced fire and associated damages suffered by Plaintiff were proximately caused by the carelessness, negligence, recklessness, negligent acts and/or omissions of Defendant Tyler Yenna, acting both jointly and severally with the remaining Co-Defendants, in the following: (a) improperly disposing of smoking material at the subject premises which Defendant knew or should have known created an unreasonable risk of harm to the subject premises; 6 (b) failing to make sure the cigarette was not lit before it was disposed of; and (c) failing to inspect and/or test smoke detection devices in the subject premises; (d) failing to take all precautions necessary under the circumstances to safeguard the premises from the risk of fire; (e) failing to notify the proper authorities of a possible fire in the subject premises; and (f) otherwise failing to use due care under the circumstances in ways that may be further revealed during the course of discovery. 27. Plaintiff's damages were caused in no way by the actions or inactions of Plaintiff, rather all of Plaintiff's losses were caused by the carelessness, negligence, and/or recklessness of Defendant, as set forth above. WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. COUNT V - RES IPSA LOOUITUR Thomas Kiser vs Nikolaos Seitz, Devin Brewer, Rebecca Krebs and Tyler Yenna 28. Plaintiff, Thomas Kiser, incorporates by reference the averments set forth in paragraphs 1 through 28 above as though each were set forth at length herein. 29. It may be inferred that harm suffered by Plaintiff was caused by negligence of Defendants, Nikolaos Seitz, Devin Brewer, Rebecca Krebs and Tyler Yenna when: (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of Plaintiffs and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of Defendants' duty to Plaintiff. 7 WHEREFORE, Plaintiff requests judgment in his favor in an amount in excess of the arbitration limits, together with interest, the costs of this action, and other such in further relief as this Honorable Court deems just and proper. BENNETT, BRICKLIN & SALTZBURG LLC BY K VIN M. BLAKE, ESQUIRE Attorney for Plaintiff 8 VERIFICATION I, Kevin M. Blake, Esquire, do hereby verify that I am the attorney for the Plaintiff, Thomas Kiser in the above-captioned action and that the facts set forth in the foregoing Amended Civil Action Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. KEVIN M. BLA DATE: November 20, 2009 9 BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com ATTORNEY FOR: Plaintiff Kiser USAA CASUALTY INSURANCE COURT OF COMMON PLEAS OF COMPANY, a/s/o Diana R. Loyer, et al CUMBERLAND COUNTY, PA. VS. CIVIL ACTION NIKOLAOS C. SEITZ, et al NO. 08-4006 (Consolidated Action) CERTIFICATE OF SERVICE I, KEVIN M. BLAKE, Esquire, do hereby certify that a true and correct copy of the foregoing PLAINTIFF, THOMAS KISER' S AMENDED COMPLAINT has been served upon the following persons: Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Attorneys for Defendant Nikoloas Seitz Joseph F. Rich, Esquire Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Attorneys for Co-Plaintiff USAA a/s/o Diana R. Loyer Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst, LLC 518 Township Line Road, Ste. 300 Blue Bell, PA 19422 Attorneys for Co-Plaintiff Kathy M. Witters 10 Scott McPartland Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111 717.909.5858 Attorneys for Devon Brewer Devon Brewer 1727 Penn St. Harrisburg, PA 17102-2331 Brooks Foland, Esquire THOMAS, THOMAS & HAFER, LLP 305 North Front Street Harrisburg, PA 17108 Attorneys for Defendant Rebecca Krebs Tyler Yenna 200 Hidden Valley Lane Harrisburg, PA 17112 VIA: United States Regular First Class Mail on December 8, 2009 BENNETT, BRICKLIN & SALTZBURG LLC BY KEVIN M. BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser 11 C.) U?i ! 2009 DL-C I I P.4 Z. 05 BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD ATTORNEY FOR: Plaintiff Kiser BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NIKOLAOS C. SEITZ, et al NO. 08-4006 (Consolidated Action) PLAINTIFF THOMAS KISER'S PRELIMINARY OBJECTIONS TO DEFENDANT DEVON BREWER'S PRELIMINARY OBJECTIONS Plaintiff, Thomas Kiser (hereinafter "Plaintiff'), by and through his undersigned counsel, hereby responds to Defendant, Devon Brewer's Preliminary Objections and avers the following: Pursuant to this Honorable Court's Order of December 1, 2009, Plaintiff Kiser's Amended Complaint was deemed filed on December 1, 2009. A copy of that order is attached as Exhibit A. Therefore, the Preliminary Objections filed by Defendant Brewer to Plaintiff Kiser's original Complaint are moot. WHEREFORE, Plaintiff, Thomas Kiser respectfully requests that this Honorable Court dismiss Defendant Brewer's Preliminary Objections as moot. BENNETT, BRICKLIN & SALTZBURG LLC BY -4EIVIINN M. BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser RLED-Ot FICE OF THE PROTHOINOTARY 2009 DEC 14 PM 2: 36 VERIFICATION 1. Joseph F. Rich, Esquire, herby state that I am counsel for the Plaintiff, USAA Casualty Insurance Company, in this action and state that Plaintiff's representative is outside the jurisdiction of the court and a verification cannot be obtained within the time allowed for filing this Objection and that the statements made in the foregoing Objection are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. eph F. Rich Dated: /, , T 0-7 ALED-OWICE OF THE PROTHONOTARY 2009 DEC 14 PM 2: 3 5 { COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer Plaintiff V. NIKOLAOS C. SEITZ, Defendant. Attorneys for Plaintiff COURT OF COMMON PLEAS Cumberland County CIVIL ACTION NO.: 08-4006 (Consolidated Action) PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the attached complaint which was originally filed on November 9, 2009. COZEN O'CONNOR Dated: 7 !?! / e- i F. RICH, ESQUIRE arket Street Philadelphia, PA 19103 215-665-7285 Attorneys for Plaintiff USAA Casualty Insurance Company, as subrogee of Diana R. Loyer CERTIFICATE OF SERVICE I, Joseph F. Rich, hereby certify that on December I , 2009,1 served a true and correct copy of the foregoing Praecipe to Reinstate Complaint on the following counsel of record and parties: Scott McPartland, Esquire Law Offices of Leslie David Jacobson 8150 Derry Strect;• Suite A Harrisburg, PA 171,11-5260 Attorneys for Defendant Devon Brewer Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Attorneys for Defendant Nikoloas Seitz Kevin M. Blake, Esquire Bennett, Bricklin & Saltzburg, LLP Five Valley Square, Suite 200 512 Township Line Road Blue Bell, PA 19422 Attorneys for co-Plaintiff Thomas Kizer Richard J. Boyd, Jr., Esquire Nelson Levine de Luca & Horst, LLC 518 Township Line Road, Suite 300 Blue Bell, PA 19422 Attorneys for co-Plaintiff Kathy M. Witters Brooks Foland, Esquire Thomas, Thomas & Haefer, LLP 305 North Front Street Harrisburg, PA 17108 Attorneys for Defendant Rebecca Krebs SEPH F. RICH, ESQUIRE p THE RfiTdC''fi OTARY 2009 DEC 16 AM 10: 51 c U "Ili a *co,oo p o c0 l e Vic` q SHERIFF'S OFFICE OF CUMBERLAND COUNTY R Thomas Kline Sheriff Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant 0F T?E M?TAW Edward L Schorpp Solicitor 2010 JAN -5 AM 8: 43 Cp?? USAA Casualty Insurance Company a/s/a Diana R. Loyer vs. Case Number Tyler Yenna 2008-4006 SHERIFF'S RETURN OF SERVICE 12/14/2009 R. Thomas Kline, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Tyler Yenna, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Order and Complaint according to law. 12/18/2009 Dauphin County Return: And now, December 18, 2009 I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Tyler Yenna the defendant named in the within Order and Complaint and that I am unable to find him in the County of Dauphin and therefore return same NOT FOUND. SHERIFF COST: $37.00 SO WDecember 28, 2009 R T KLINE, SHERIFF ?.;etm`gSuite Sherr.I te'?ea of. b,c. ?Cj t f ict of th eSh ebr i?f. Mary Jane Snyder Real Estate Depu Charles E. Sheaffer Chief Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Michael W. Rinehart Assistant Chief Deputy Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin USAA CASUALTY INSURANCE COMPANY A/S/O DIANA R. LOYER VS TYLER YENNA Sheriff s Return No. 2009-T-3153 OTHER COUNTY NO. 20084006 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for TYLER YENNA the DEFENDANT named in the within AMENDED COMPLAINT and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, DECEMBER 18, 2009. AS PER RICK CARLINO RESIDENT AT 200 HIDDEN VALLEY LANE, SINCE 6/2009 DOES NOT KNOW DEFT Sworn and subscribed to So Answers,! before me this 21 ST day of December, 2009 NOTARIAL SEAL ARY JANE SNYDER, Notary Public Highspire, Dauphin County [My Commission Expires Set 1, 2010 Sheriff of Dauphin County, Pa. By Deputy Sheriff Deputy: KIMBERLY BARTO Sheriffs Costs: $49.25 12/16/2009 COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 r?i rI r '1i_ !?C t Tr - 4 ?T ' "nTARY 2 i 0 {r'?' J Pil 2: 4 3 Attorneys for Plaintiff USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer Plaintiff V. NIKOLAOS C. SEITZ, COURT OF COMMON PLEAS Cumberland County CIVIL ACTION NO.: 08-4006 (Consolidated Action) Defendant. PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the attached complaint which was originally filed on November 9, 2009 and reinstated on December 16, 2009. COZEN O'CONNOR Dated: N 6 B JOSEPH F. RICA, ESQUIRE 1900 Market Street Philadelphia, PA 19103 215-665-7285 Attorneys for Plaintiff USAA Casualty Insurance Company, as subrogee of Diana R. Loyer x+10.00 PO A-rT/ Ct 4 403936 CERTIFICATE OF SERVICE I, Joseph F. Rich, hereby certify that on January 1-3 , 2010, I served a true and correct copy of the foregoing Praecipe to Reinstate Complaint on the following counsel of record and parties: Scott McPartland, Esquire Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111-5260 Attorneys for Defendant Devon Brewer Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Attorneys for Defendant Nikoloas Seitz Kevin M. Blake, Esquire Bennett, Bricklin & Saltzburg, LLP Five Valley Square, Suite 200 512 Township Line Road Blue Bell, PA 19422 Attorneys for co-Plaintiff Thomas Kizer Richard J. Boyd, Jr., Esquire Nelson Levine de Luca & Horst, LLC 518 Township Line Road, Suite 300 Blue Bell, PA 19422 Attorneys for co-Plaintiff Kathy M. Witters Brooks Foland, Esquire Thomas, Thomas & Haefer, LLP 305 North Front Street Harrisburg, PA 17108 Attorneys for Defendant Rebecca Krebs SEPH F. RICH, ESQUIRE SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Edward L Schorpp Solicitor ?q?l3ti?#? of ti.Riaul,,prfj ? TP!7 P: 2010 Ji1P4 21 i f`I 3:23' CL t _ TV USAA Casualty Insurance Company a/s/a Diana R. Loyer Case Number vs. 2008-4006 Tyler Yenna SHERIFF'S RETURN OF SERVICE 01/05/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Devon Brewer, but was unable to locate him/her in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 01/05/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Tyler Yenna, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 01/11/2010 Dauphin County Return: And now, January 11, 2010 I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Tyler Yenna the defendant named in the within Complaint and Notice and that I am unable to find him in the County of Dauphin and therefore return same NOT FOUND. The landlord of 200 Hidden Valley Lane, Harrisburg, PA 17112 has advised the defendant resided at this address previous to June 2009. 01/15/2010 Dauphin County Return: And now, January 15, 2010 I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Devon Brewer the defendant named in the within Complaint and Notice and that I am unable to find him/her in the County of Dauphin and therefore return same NOT FOUND. After several attempts at 1727 Penn Street, Harrisburg, PA 17102 the Complaint and Notice has expires' SHERIFF COST: $53.00 January 20, 2010 ,, CamtySaite Shen`f. 7 el" muff nG. BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire `- Identification No. 77979 ATTORNEY FOR: Defendant; FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. NIKOLAOS C. SEITZ, et al COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) PRAECIPE TO RE-INSTATE AMENDED COMPLAINT TO THE PROTHONOTARY: Please re-instate the Amended Complaint in the above-captioned matter filed with the Court on or about December 11, 2009. BENNETT, BRICKLIN & SALTZBURG LLC BY VIN M. B CAKE, ESQUIRE Attorney for Plaintiff Thomas Kiser #10.00 PO A7" ckC* 459a RTI-'Ja&(08/ BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser r,?r Iz F= r f _ N ??t4 COURT OF COMMON PLEA$ O F . . ,. CUMBERLAND COUNTY, PA. `-' -< CIVIL ACTION NO. 08-4006 (Consolidated Action) CERTIFICATE OF SERVICE I, KEVIN M. BLAKE, Esquire, do hereby certify that a true and correct copy of the foregoing PRAECIPE TO RE-INSTATE AMENDED COMPLAINT, said Amended Complaint, filed with the Court on or about December 11, 2009, has been served upon the following persons: Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Attorneys for Defendant Nikoloas Seitz Joseph F. Rich, Esquire Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Attorneys for Co-Plaintiff USAA a/s/o Diana R. Loyer Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst, LLC 518 Township Line Road, Ste. 300 Blue Bell, PA 19422 Attorneys for Co-Plaintiff Kathy M. Witters Scott McPartland Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111 717.909.5858 Attorneys for Devon Brewer Devon Brewer 1727 Penn St. Harrisburg, PA 17102-2331 Brooks Foland, Esquire THOMAS, THOMAS & HAFER, LLP 305 North Front Street Harrisburg, PA 17108 Attorneys for Defendant Rebecca Krebs Tyler Yenna 200 Hidden Valley Lane Harrisburg, PA 17112 VIA: United States Regular First Class Mail on January 15, 2010 BENNETT, BRICKLIN & SALTZBURG LLC BY KEVIN M. BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson { I Sheriff Jody S Smith 10 Chief Deputy ?Q t '?i'`'` ` i ` - ` r Edward L Schorpp Solicitor USAA Casualty Insurance Company a/s/a Diana R. Loyer Case Number vs. 2008-4006 Tyler Yenna SHERIFF'S RETURN OF SERVICE 01/26/2010 Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on January 26, 2010 at 1721 hours, she served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Nikolaos C. Seitz, by making known unto himself personally, at 5950 Huntington Commons, Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing to him personally the said true and correct copy of the same. Request for service at 10 Poplar Street, Wormleysburg, PA 17043 is under construction and is not currently occupied. SHERIFF COST: $42.40 January 27, 2010 SO ANOWERS RONNY R ANDERSON, SHERIFF $Y Deputy Yieriff %oi CounfySuaa, Shenff. Teleosoft , Inc. SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff atr dtirutGrr??? f: OFFICE OF THE >!-M: P FIL F D OF Jody S Smith Chief Deputy Edward L Schorpp Solicitor USAA Casualty Insurance Company a/s/a Diana R. Loyer vs. Tyler Yenna 2010 FF3 - f ;let 2: -lei' Case Number 2008-4006 SHERIFF'S RETURN OF SERVICE 01/20/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Tyler Yenna, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Order and Amended Complaint according to law. 01/25/2010 Dauphin County Return: And now, January 25, 2010 I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Tyler Yenna the defendant named in the within Order and Amended Complaint and that I am unable to find him in the County of Dauphin and therefore return same NOT FOUND. Per Emmett Klillen, Tyler Yenna does not reside at 217 Reily Street, Harrisburg, PA 17112. SHERIFF COST: $37.00 January 28, 2010 SO N Y R ANDERSON, SHERIFF ;c) CountySuite Shenk Teleosoft. In,,- FN E-D THOMAS, THOMAS & HAFER, LLP by: Brooks R. Foland, Esquire I.D. No. 70102 305 North Front Street 6t' Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 (717) 237-7105 fax bfoland@tthlaw.com ZQ I 0 FEB 22 1' r? C1 r; s Counsel for Defendant Rebecca Krebs USAA CASUALTY INSURANCE COMPANY a/s/o DIANA R. LOYER, et al., Plaintiffs vs. NIKOLAOS SEITZ, et al. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-4006 (Consolidated Action) JURY TRIAL DEMANDED THOMAS, THOMAS & HAFER, LLP'S PETITION FOR LEAVE TO WITHDRAW AS COUNSEL FOR DEFENDANT REBECCA KREBS Pursuant to Pa. R.C.P. 1012, et seq., Brooks R. Foland, Esquire ("Attorney Foland"), and the firm of Thomas, Thomas & Hafer, LLP ("TT&H"), hereby petitions this Honorable Court for leave to withdraw as counsel for Defendant Rebecca Krebs (hereinafter "Defendant Krebs"), and hereby aver as follows: 1. This consolidated action arises from a fire which occurred on January 13, 2008 on Poplar Street, Wormleysburg, Pennsylvania 17043. 2. This consolidated action has been assigned to The Honorable Kevin A. Hess, who most recently issued an Order, dated December 1, 2009, granting Plaintiff Thomas Kiser's Motion for Leave to File an Amended Complaint. 3. On November 24, 2009, Attorney Foland and TT&H filed their Entry of Appearance on behalf of Defendant Krebs in the matter of Kiser v. Seitz, et al., Case No. 08-4832 in the Court of Common Pleas of Cumberland County, Pennsylvania. 4. After learning that such case had been consolidated with two other cases involving the same parties and arising out of the same set of facts and circumstances, on December 8, 2009, Attorney Foland and TT&H filed an Entry of Appearance on behalf of Defendant Krebs in the instant consolidated matter. 5. By letter, dated December 2, 2009, sent via both regular and certified mail to Defendant Krebs' last known address, Attorney Foland first attempted to contact Defendant Krebs to inform her that TT&H had been retained as her counsel in this matter, and that her cooperation would be required in order to properly protect her interests therein. 6. Defendant Krebs' last known address is Salt Air Kitchen, 50 Wilmington Avenue, Rehoboth Beach, Delaware 19971-2217, which is/was her place of employment. 7. On December 10, 2009, Attorney Foland spoke with the owner of the Salt Air Kitchen, Jonathan Spivak, who confirmed that Defendant Krebs still worked there, and stated that he would give her a message to call Attorney Foland as soon as possible regarding this very important matter (the instant case). 8. After not hearing from Defendant Krebs in response to the December 2, 20009 letter, as well as to the telephone message left at the Salt Air Kitchen on December 10, 2009, and numerous other voicemail messages left by TT&H and her insurance company in this matter, Travelers Insurance Company, TT&H sent her another letter, dated December 14, 2009, requesting her cooperation in the defense of the instant matter, including in responding to written discovery requests that had been served upon her in connection therewith. 2 9. However, despite being told that responses needed to served by a certain date, Defendant Krebs again failed to respond. 10. On January 7, 2010, TT&H once again sent a letter to Defendant Krebs by both regular and certified mail to her last known address asking her to review and verify the enclosed proposed responses to written discovery requests as soon as possible, as it had been more than 30 days since the requests had been served, and Defendant Krebs was running the risk of having sanctions imposed against her if she continued to fail to respond and cooperate in the defense of these claims. 11. Once again, Defendant Krebs failed to respond to TT&H's correspondence. 12. On January 8, 2010, Defendant Krebs' insurance company in connection with the claims in this matter, Travelers Insurance Company, transmitted a letter to Defendant Krebs via certified mail to her last known address stating that both it and her counsel, TT&H, had made multiple attempts in multiple ways to reach her to discuss the instant matter, and that her failure to respond and general inaction was hindering the preparation of a valid and effective defense to the claims pending against her, and that her insurance policy requires her cooperation in the defense of the suit. 13. Defendant Krebs did not respond to the January 8, 2010 letter from Travelers Insurance Company. 14. After being served with a Notice of Default Judgment for failing to respond to the complaint in the instant consolidated matter, TT&H sent a letter to Defendant Krebs, dated January 18, 2010, via regular and certified mail to her last known address, enclosing the Notice of Default, as well as explaining that if she did not make contact 3 with her legal counsel and cooperate in filing an answer on or before January 22, 2010, she risked a default judgment being entered against her, and TT&H having to petition the court to withdraw as her counsel for her continuous failure to cooperate in defending against Plaintiffs' claims. 15. Again, even with the prospect of a default judgment being entered against her, Defendant Krebs did not respond to TT&H's correspondence. 16. Finally, on January 29, 2010, TT&H sent a letter to Defendant Krebs, via regular and certified mail to her last known address, explaining that a default judgment had been entered against her for the failure to respond to the complaint, and that despite her failures to respond to the numerous letters sent from her legal counsel, TT&H, and her insurance company, Travelers Insurance Company, she needed to make contact with TT&H immediately in order to discuss whatever options she may have left. 17. Yet again, Defendant Krebs failed to respond to TT&H's January 29, 2010 letter. 18. As TT&H has made several attempts to contact Defendant Krebs via letters and telephone calls since the inception of this matter, and she has failed to even once make contact with TT&H as her attorney, or with Travelers Insurance Company, her insurance carrier, Defendant Krebs has refused to cooperate with the defense of the claims made against her in this matter. 19. The concurrence of counsel of record regarding TT&H's instant Petition was sought, and the response of said counsel was as follows: 4 a. Joseph F. Rich, Esquire, counsel for Plaintiff USAA Casualty Insurance Company, a/s/o Diana R. Loyer, stated that he had no opposition to the instant Petition; b. Richard J. Boyd, Jr., Esq., counsel for Plaintiff Kathy M. Witters, stated that he had no opposition to the instant Petition; C. Kevin M. Blake, Esquire, counsel for Plaintiff Thomas Kiser, did not respond to voicemail or email regarding his position as to the instant Petition; d. Patrick J. Moran, Esquire, counsel for Defendant Nikolaos Seitz, did not concur with the instant Petition. WHEREFORE, it is respectfully submitted that defense counsel, Brooks R. Foland, Esquire, and the firm of Thomas, Thomas & Hafer, LLP, be permitted to withdraw their appearance as to Defendant Rebecca Krebs in the instant consolidated matter. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP by: ". 6T?Le? lcrll?o Brooks R. Foland, Esquire I.D. No. 70102 305 North Front Street, 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 237-7100 5 CERTIFICATION AS PER PA.R.C.P. 1012(e)(1)(iii) This shall hereby certify that on February 18th, 2010, the undersigned counsel for Defendant Rebecca Krebs, Brooks R. Foland, Esquire, of Thomas, Thomas & Hafer, LLP, served a copy of this Petition for Leave to Withdraw as Counsel for Defendant Rebecca Krebs upon Defendant Rebecca Krebs via certified and regular mail sent to her last known address as stated below: Rebecca Krebs Salt Air Kitchen 50 Wilmington Avenue Rehoboth Beach, DE 19971-2217 rooks R. Foland, Esquire Thomas, Thomas & Hafer, LLP 6 CERTIFICATE OF SERVICE /q P AND NOW, this ! day of 2010, I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Rebecca Krebs Salt Air Kitchen 50 Wilmington Avenue Rehoboth Beach, DE 19971-2217 (Defendant) Kevin M. Blake, Esq. Bennett, Bricklin & Saltzburg, LLP Five Valley Square Suite 200 512 Township Line Road Blue Bell, PA 19422 Patrick J. Moran, Esq. William J. Ferren & Associates Ten Sentry Parkway, Suite 301 Blue Bell, PA 19422 Richard J. Boyd, Jr., Esq. Nelson Levine DeLuca & Horst, LLC 518 Township Line Road Ste. 300 Blue Bell, PA 19422 Coleen M. Polek 779004.1 Joseph F. Rich, Esq. Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 7 (( +A1f?. 2010 JAR 2? 3" BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 USAA CASUALTY INSURANCE . COMPANY, a/s/o Diana R. Loyer, et al vs. NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) PRAECIPE TO ENTER DEFAULT JUDGMENT TO THE PROTHONOTARY: Kindly enter a default judgment against Defendant, Rebecca Krebs for failure to appear or answer Plaintiff's Complaint, which was served on Defendant Krebs on October 18, 2009 via the United States Postal Service, Certified Mail, Return Receipt Requested, No. 7000153000011811720, a copy of which is attached as Exhibit A. BENNETT, BRICKLIN & SALTZBURG LLC BY: KEVIN M. BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser X14. oo Po ACT`/ Ck 45gU Wic I?lOu,? EXHIBIT A ? L5 BENNETT, BRICKLIN & SALTZBURG LLP BY: Kevin M. Blake, Esquire Identification No. 77979 ATTORNEY FOR: Plaintiff FIVE VALLEY SQUARE SUITE 200 512 TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 THOMAS KISER and COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. VS. NIKOLAOS SEITZ CIVIL ACTION c o p .o -n DEVIN BREWER Vr.- -' - C ) n C L REBECCA KREBS NO. 084832 AFFIDAVIT OF SERVICE co I, Kevin M. Blake, Esquire, being duly sworn according to law, deposes and says that he is an attorney with Bennett, Bricklin & Saltzburg LLC, attorneys for the plaintiff in the above matter and that pursuant to the provisions of Pa. R.C.P. 430, a true and correct copy of the Complaint was served upon defendant Rebecca Krebs via the United States Postal Service, Certified Mail, Return Receipt Requested (No. 7000153000011811720. BENNETT, BRICKLIN & SALTZBURG LLC Sworn to and subscribed before me this 22'1 day of 00-doe r , 2009 Notary Public BY: LAKE, ESQUIRE Plaintiff COMMONWEALTH OF PE?VNSY,?-YANtA N NOTARIAL ,tp S. ALLEVA, SEAL Whit X,pu* Comm i Twp., Mon cou1 t y My ssion Expires Fry county Ulm <? t ?? '? s ?, stun Fteoeipt foFMefC(lell? n .C.O.D.. p' ?Yes i 2. M qk( . 4,prrw i ,.PS Form 3811. Febnjwy.20o4 c xrmow F%at= Receipt, 4025as dt 44-,sio } UNITED STATES POSTAL. SERVICE Fkst-Glass Mail Postage & Fees Paid r •. USPS ` Pemk No. G10 .01 ft%! Sunder. Nase pdntYoUr nal e, adftss, ZIP+4 in this box • BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al VS. NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: Elizabeth V. Gavin, being duly sworn according to law, deposes and says that she makes this affidavit on behalf of the within named Plaintiff, Thomas Kiser, being authorized to do so, and to the best of her knowledge, information and belief, Defendant, Rebecca Krebs is over 18 years of age; that her last known place of residence is 10 Poplar Street, Wormleysburg, Pennsylvania 17043, and her last known place of employment is Salt Air Kitchen, 50 Wilmington Avenue, Rehoboth, Delaware 19971 and that she is not in the military service or naval service of the United States or its Allies or otherwise within the provisions of the Soldiers and Sailors Civil Relief Act of Congress dated 1940 and its amendments. r> Elizabeth V. Gavin Sworn to and subscribed before me this Xi 5} day of `To no" .2010 0' ; 1 - S , O&W aMMAeit!u.,H of mmme NOTARY PUBLIC NOTARIAL SEAL 11 DGANk S. ALLEVA, Notary PuW MY COMMISSION EXPIRES: W*ainUp•, Montgomery Corrnission Expires Februarv C=ft 27,' 10 w.. ,?_ ? ,.?E,;?s ?': ? F ,, _, .. BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 USAA CASUALTY INSURANCE . COMPANY, a/s/o Diana R. Loyer, et al Vs. NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) CERTIFICATION OF NOTICE OF INTENT TO TAKE A DEFAULT JUDGMENT TO THE PROTHONOTARY: I hereby certify that a true and correct copy of a Notice of Praecipe for Entry of Default Judgment in the form attached hereto was sent to Defendant, Rebecca Krebs and to her counsel as set forth below on January 12, 2010: Brooks R. Foland, Esquire Rebecca Krebs THOMAS, THOMAS & HAFER, LLP c/o Salt Air Kitchen 305 North Front Street 50 Wilmington Avenue Harrisburg, PA 17108 Rehoboth, DE 19971-2217 BENNETT, BRICKLIN & SALTZBURG LLC BY: -Z KEVIN M. BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser ?oA Y PHILADELPHIA OFFICE 1601 MARKET STREET 16TH FLOOR PHILADELPHIA, PA 19103-2393 (215) 561-4300 FAX: (215) 561-6661 CENTRAL PENNSYLVANIA OFFICE 222 E. ORANGE STREET LANCASTER, PA 17602 (717) 393-4400 FAX: (717) 393-4322 BENNETT, BRICKLIN & SALTZBURG LLC ATTORNEYS AT LAW FIVE VALLEY SQUARE SUITE 200 512 E. TOWNSHIP LINE ROAD BLUE BELL, PENNSYLVANIA 19422 (267) 654-1100 FAX: (267) 654-1122 WEBSITE: www.bbs-law.com NEW JERSEY OFFICE EXECUTIVE MEWS SUITE X-115 1930 E. MARLTON PIKE CHERRY HILL, NJ 08003 (856) 751-5285 FAX: (856) 751-5281 WRITER'S DIRECT DIAL: (267) 654-1104 WRITER'S EMAIL: blake@bbs-law.com January 12, 2010 Brooks R. Foland, Esquire Rebecca Krebs THOMAS, THOMAS & HAFER, LLP c/o Salt Air Kitchen 305 North Front Street 50 Wilmington Avenue Harrisburg, PA 17108 Rehoboth, DE 19971-2217 RE: Thomas Kiser Vs. Nikolaos Seitz, Devin Brewer and Rebecca Krebs Our File No. 98075 Dear Mr. Foland: Enclosed please find a Notice of Intention to Take a Default Judgment against your client, Rebecca Krebs in this matter. Kindly respond within the time allotted by the Pennsylvania Rules of Civil Procedure. Thank you for your attention to this matter. Very tr ly?ours, Kevin M. Blake KMB:evg Enclosure cc: all counsel bcc: Nationwide Ins. Co. Attn: Ms. Karen Smith (via e-mail) Your Claim No. 5837HP019960 BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 EAST TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 USAA CASUALTY INSURANCE , COMPANY, a/s/o Diana R. Loyer, et al Vs. NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Request for Final Judgment by Default was served on all interested parties on this date by way of regular mail, postage pre-paid, addressed as follows: Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Joseph F. Rich, Esquire Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst, LLC 518 Township Line Road, Ste. 300 Blue Bell, PA 19422 Scott McPartland Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111 Devon Brewer 1727 Penn St. Harrisburg, PA 17102-2331 Brooks Foland, Esquire THOMAS, THOMAS & HAFER, LLP 305 North Front Street Harrisburg, PA 17108 Tyler Yenna 200 Hidden Valley Lane Harrisburg, PA 17112 BENNETT, BRICKLIN & SALTZBURG LLC BY C `'rte' ?? KEVIN M. BLAKE, ESQUIRE Date: January 22, 2010 Attorney for Plaintiff Thomas Kiser 'EP 5 2009 USAA Casualty Insurance Company, a/s/o Diana R. Loyer V. Nikolaos C. Seitz COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 2008-4006 Jury Trial Demanded Thomas Kiser COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. Civil Action - Law Nikolaos Seitz, et al. NO.: 2008-04832 Jury Trial Demanded Kathy M. Witters COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. NO.: 2009-4259 Nikolaos Seitz, Rebecca Krebs : and Devin Brewer Jury Trial Demanded ORDER AND NOW, this /&A- day of ?£lkm? 2009, it is hereby ORDERED and DECREED that Defendants' Motion to Consolidate is GRANTED. It is further ORDERED and DECREED that the matters are consolidated for purposes of Discovery and Trial under the action docketed with this Court under Docket No. 2008-4006. BY THE COURT; J. FILED-C!'FIC OF THE 2009 SEP 16 AM 10* a 6 tC TRANSMISSION tERIFICATION REPORT TIME NAME FAX TEL SER. # . DATE DIME: FAX NO. /NAME DURATION PAGE(S) RESULT MODE 01/27 16:17 9243648E 00:03:21 11 OK STANDARD ECM DAVID D. BUELL PROTHONOTARY CUMBERLAND COUNTY ONE COURTHOUSE SQUARE CARLISLE, PA 17013-3357 (717) 240-6195 Ak I us To.- J sO Fa.x# Q V3 - L, q e From: Cumberland County Prothonotary RE: Message: 01/27/x'010 16: 20 PROTHONOTARY C LOHG 7172406573 BROH3J606381 -a-No of pages (including cover sheet) This message is intended for the use of the individual or entity to whiel., it ?js addressed, and it may contain information that is privileged, confidential and n%-oTn"t frnm Aicnlncyrr+n nrrlnr 1-1 T-C &U. , USAA CASUALTY INSURANCE COMPANY, a/s/o DIANA R. LOYER, ET AL., Plaintiffs vs. NIKOLAOS SEITZ, et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-4006 (CONSOLIDATED ACTION) JURY TRIAL DEMANDED IN RE: THOMAS, THOMAS & HAFER LLP'S PETITION FOR LEAVE TO WITHDRAW AS COUNSEL FOR DEFENDANT REBECCA KREBS ORDER AND NOW, this z "j day of March, 2010, a rule is issued on all parties to show cause why the relief requested in the within petition for leave to withdraw as counsel ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, ?e Hess, P. J. 2. ?s J .12I C ? ° I " z ?. T y cd) o 3 3f 3116 fir' SHERIFF'S OFFICE OF CUMBERLAND COUNTY FILE?}FrICE Ronny R Anderson 0 THc PpOTFj Sheriff ?,atitr ut un+nf?,f???? CMTApy Jody S Smith 2010 MAR -3 AM 11: 22 Chief Deputy Edward L Schorpp CUPL ,; ,u ;Solicitor 0Ff USAA Casualty Insurance Company a/s/a Diana R. Loyer vs. Tyler Yenna (et al.) Case Number 2008-4006 SHERIFF'S RETURN OF SERVICE 01/28/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Devon Brewer, but was unable to locate him/her in his bailiwick. He therefore deputized the Sheriff of Chester County, PA to serve the within Complaint and Notice according to law. 02/03/2010 Chester County Return: And now February 3, 2010 at 1423 hours I, Carolyn B. Welsh, Sheriff of Chester County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Devon Brewer by making known unto Christina Soleil, adult in charge at 512 Susan Drive, West Chester, PA 19380 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.00 February 25, 2010 =1 CounrySuite Shenff. Teieosoft . Inc. ? ?• ? ? ?2osa - 9d ? 7/- so c In The Court of Common Pleas of Cumberland County, Pennsylvania USAA Casualty Insurance Company VS. SHERIFF'S COSTS Devon Brewer Date -7-? -,o 512 Susan Drive ? West Chester, PA 19380 ?zoa Paid Receipt No. a Expiration date: t- 4 -io Civil No. 2008-4006 Now, January 28, 2010, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Chester County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. %>nentt of Cumberland County, PA 2 Affidavit of Service Now, j"e6,r, 3 , 201, at ?a3 o'clock P M, served the .,. d< `?C3 within, ?p??,n. upon_ _ je.v®n C)r at IC t5an &,t by handing to-Qh(1 1 a and made known to the contents thereof. So answers, Sworn and subscribed before me this . day of r" ,20JZ OOMMO TH OF PENNSYLVANIA NOTARY SEAL EEItisa P. DiMattia - Notary Public hester Boro., Chester County ISSION EXPIRES DEC. 06, 2011 -I <Pi.e.l CU copy of the original ?04" ..-11.y, COSTS SERVICE $ MILEAGE AFFIDAVIT BENNETT, BRICKLIN & SALTZBURG LLC c b BY: Kevin M. Blake, Esquire Identification No 77979 ATTORNEY FOR iff Pl i MC . : nt a 960 HARVEST DRIVE _ r BUILDING B, SUITE 100 <.° BLUE BELL, PA 19422 (267) 654-1100 ' 25 blake a*bbs-law.com N rn USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. VS. NIKOLAOS C. SEITZ, et al CIVIL ACTION NO. 08-4006 (Consolidated Action) CERTIFICATE OF SERVICE I, KEVIN M. BLAKE, Esquire, do hereby certify that a time-stamped copy of the AMENDED COMPLAINT has been served upon the following persons: Mr. Tyler Yenna 326 Yorkshire Circle Nashville, TN 37211 (Signed by Jackson) VIA: UPS 2nd DU Delivery/Tracking No. IZ76375FA697121404 on February 16, 2010 A copy of the UPS Confirmation of Delivery Notification is attached hereto. BENNETT, BRICKLIN & SALTZBURG LLC BY KEVIN M. BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser Page 1 of 2 10 Kupperman, Nancy From: Gavin, Elizabeth Sent: Wednesday, February 17, 2010 9:07 AM To: smithk6@nationwide.com Subject: FW: UPS Delivery Notification, Tracking Number 1Z76375FA697121404 From: UPS Quantum View [mailto:auto-notify@ups.com] Sent: Tuesday, February 16, 2010 6:15 PM To: Gavin, Elizabeth Subject: UPS Delivery Notification, Tracking Number iZ76375FA697121404 ***Do not reply to this e-mail. UPS and BENNETT BRICKLIN & SALTZBURG, LLC will not receive your reply. At the request of BENNETT BRICKLIN & SALTZBURG, LLC, this notice is to confirm that the following shipment has been delivered. Important Delivery Information Adult Signature Captured Delivery Date / Time: 16-February-2010 / 4:27 PM (/ Delivery Location: RESID NTIAL Signed by: JACKSON Shipment Detail Ship To: Tyler Yenna 326 YORKSHIRE CIR NASHVILLE TN 37211 US UPS Service: 2ND DAY AIR Weight: 2.0 LBS Tracking Number: 1Z76375FA697121404 Reference Number 1: 98075 2/26/2010 COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 Attorneys for Plaintiff USAA CASUALTY INSURANCE COURT OF COMMON PLEAS COMPANY, a/s/o Diana R. Loyer Cumberland County CIVIL ACTION NO.: 08-4006 Plaintiff (Consolidated Action) V. NIKOLAOS C. SEITZ, Defendant. -- PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the attached complaint which was originally filed on November 9, 2009 and previously reinstated on January 15, 2010. COZEN O'CONNOR By: Dated: 'Oye'IL 16? ?l0 40SEPH F. RICH, ESQUIRE 1900 Market Street Philadelphia, PA 19103 215-665-7285 Attorneys for Plaintiff USAA Casualty Insurance Company, as subrogee of Diana R. Loyer Q $Ib. m PD All-4 C?c?` ?o8agg ? a39o&5 CERTIFICATE OF SERVICE I, Joseph F. Rich, hereby certify that on March 2010, I served a true and correct copy of the foregoing Praecipe to Reinstate Complaint on the following counsel of record and parties: Scott McPartland, Esquire Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111-5260 Attorneys for Defendant Devon Brewer Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Attorneys for Defendant Nikoloas Seitz Kevin M. Blake, Esquire Bennett, Bricklin & Saltzburg, LLP Five Valley Square, Suite 200 512 Township Line Road Blue Bell, PA 19422 Attorneys for co-Plaintiff Thomas Kizer Richard J. Boyd, Jr., Esquire Nelson Levine de Luca & Horst, LLC 518 Township Line Road, Suite 300 Blue Bell, PA 19422 Attorneys for co-Plaintiff Kathy M. Witters Brooks Foland, Esquire Thomas, Thomas & Haefer, LLP 305 North Front Street Harrisburg, PA 17108 Attorneys for Defendant Rebecca Krebs JOSEPH F. RICH, ESQUIRE C/ ?Y. CVtls r .. .?'vi ; i, BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 960 HARVEST DRIVE BUILDING B, SUITE 100 BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) PRAECIPE TO ENTER DEFAULT JUDGMENT TO THE PROTHONOTARY: Kindly enter a default judgment against Defendant, Devon Brewer for failure to appear or answer Plaintiffs Amended Complaint, which was served on Defendant Brewer by way of alternate service by publication and posting per this Honorable Court's December 29, 2009 Order, a copy of which is attached hereto as Exhibit A. Proof of publication is attached as Exhibit B, and proof of posting is attached as Exhibit C. BENNETT, BRICKLIN & SALTZBURG LLC , ?,z , - --, ?" BY: KEVIN M. BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser 41+. DO ,p0 A MY Q-19 y110 E# asg ?.?TuTu1T 8 DEC- 1 6 ?r", BENNETT, BRICKLIN & SALTZBURG LLP BY: Kevin M. Blake, Esquire Identification No. 77979 FIVE VALLEY SQUARE SUITE 200 512 TOWNSHIP LINE ROAD BLUE BELL, PA 19422 (267) 654-1100 ATTORNEY FOR: Plaintiff THOMAS KISER and COURT OF COMMON PLEAS OF 12 Poplar Street CUMBERLAND COUNTY, PA. Wormleysburg, PA 17043 VS. NIKOLAOS SEITZ 5950 Huntington Commons Enola, PA 17025 CIVIL ACTION DEVIN BREWER REBECCA KREBS 5950 Huntington Commons Enola, PA 17025 NO. 08-4832 ?y ORDER AND NOW, this jX„ 1' 11 day of Ce2008, upon consideration of plaintiff's motion to enter a special Order directing service of process, it is hereby Ordered and Decreed that the Motion is granted and that plaintiff may serve process on defendant Devin Brewer by publication and posting at defendant's premises. BY THE COURT: 41%.JM' ? S . J. EXHIBIT B N PROOF OF PUBLICATION OF NOTICE :2 =. IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 = - 'z7 COMMONWEALTH OF PENNSYLVANIA' y ss. t:> COUNTY OF CUMBERLAND Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, Viz February 27, 2009 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. - I ' Z ?V'- - i Marie Coyne, itor SWORN TO AND SUBSCRIBED before me this 27 day of February, 2009 J. (/ ' ,A,?? C-1 ? Notary NOTARIAL SEAL DEBORAH A COLLINS Notary Public CARLISLE BORO, CUMBERLAND COUNTY My Commission Expires Apr 28, 2010 CUMBERLAND LAW JOURNAL NOTICE OF CIVM ACTION In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Action-Law NO. 08-4832 Thomas Kiser, Plaintiff Vs. Nickolaos Seitz, Devin Brewer, and Rebecca Krebs, Defendants CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 1 (800) 990-9108 (717) 249-3166 BENNETT, BRICKLIN & SALTZBURG LLP 5 Valley Square Suite 200 Blue Bell , PA 19422 (267) 654-1100 Feb. 27 NOTICE NOTICE IS HEREBY GIVEN that the above were named as defendants in a civil action instituted by plaintiff. This is an action to recover property damages for a fire that occurred on January 13, 2008 at 10 Poplar Street, Wormleysburg, Pennsylvania 17043. If you wish to defend, you must enter a written appearance person- ally or by attorney and file your de- fenses or objections in writing with the court. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you without further notice for the relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PA- PER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAW- YER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OF- FER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. 812 Market St. Harrisburg, PA 17101 inquiries - 717-255-8213 CANTOR 512 TOWNSHIP LINE ROAD BLUE BELL PA 19422 V04 r p4tt WVAewa Now you know THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin) ss Joseph A. Dennison, being duly sworn according to law, deposes and says: That he is the Assistant Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or*Sunday/ Metro editions which appeared on the date(s) indicated below. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book °M°, Volume 14, Page 317. This ad # 0001950841 ran on the dates shown below: February 25, 2009 .......... tsc .. ..... to aefo re me thi 26 d ; Feprua ry, 2009 A.D. Notary Pu COMMONWEALTH OF PENNSYLVANIA Notarial Seri Shenb L KWw, NoWy Pubic Ckj Of WMrWx M 084ft Cainly k* CarMerbn EVk * Nor 20,2M 1 Femnylvenia Assodatlon of Notaries PUBLICATION COPY EXHIBIT C SHERIFF'S RETURN - REGULAR CASE NO: 2008-04832 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KISER THOMAS VS SEITZ NIKOLAOS ET AL STEVE BENDER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon BREWER DEVIN the DEFENDANT , at 1800:00 HOURS, on the 25th day of February , 2009 at 10 POPLAR STREET WORMLEYSBURG, PA 17043 by handing to POSTED PREMISES PURSUANT TO ORDER OF COURT a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 14.40 Posting 6.00 Surcharge 10.00 Postage .42 48.82 Sworn and Subscibed to before me this day So Answers: ?*6-0 ?:? 14? R. Thomas Kline 02/26/2009 BENNETT BRICKLIN & SALTZBURG By: Deputy Sheriff of A. D. BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 ATTORNEY FOR: Plaintiff Kiser 960 HARVEST DRIVE BUILDING B, SUITE 100 BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COURT OF COMMON PLEAS OF COMPANY, a/s/o Diana R. Loyer, et al CUMBERLAND COUNTY, PA. VS. CIVIL ACTION NIKOLAOS C. SEITZ, et al NO. 08-4006 (Consolidated Action) AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: Elizabeth V. Gavin, being duly sworn according to law, deposes and says that she makes this affidavit on behalf of the within named Plaintiff, Thomas Kiser, being authorized to do so, and to the best of her knowledge, information and belief, Defendant, Devon Brewer is over 18 years of age; that her last known place of residence is 10 Poplar Street, Wormleysburg, Pennsylvania 17043 and that she is not in the military service or naval service of the United States or its Allies or otherwise within the provisions of the Soldiers and Sailors Civil Relief Act of Congress dated 1940 and its amendments. Elizabeth V. Gavin Sworn to and subscribed before me this 24th day of March, 2010 NOTARY PUBLIC MY COMMISSION EXPIRES: co?oNws?? o? nv? NDTAftft SEAL D" S. AUR& Nfty Pdk TwP Z7, X014 a ? ?r,ti ?M" X ? ?,0? rk k ?? BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 960 HARVEST DRIVE BUILDING B, SUITE 100 BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) CERTIFICATION OF NOTICE OF INTENT TO TAKE A DEFAULT JUDGMENT TO THE PROTHONOTARY: I hereby certify that a true and correct copy of a Notice of Praecipe for Entry of Default Judgment in the form attached hereto was sent to Defendant, Devon Brewer and to her counsel as set forth below on March 9, 2010: Scott McPartland Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111 Devon Brewer 1727 Penn Street, Harrisburg, PA 17102 Devon Brewer 217 Reily Street Harrisburg, PA 17102 BENNETT, BRICKLIN & SALTZBURG LLC BY: K I BLAKE, ESQUIRE Attorney for Plaintiff, Thomas Kiser BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 ATTORNEY FOR: Plaintiff Kiser 960 HARVEST DRIVE BUILDING B, SUITE 100 BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COURT OF COMMON PLEAS OF COMPANY, a/s/o Diana R. Loyer, et al CUMBERLAND COUNTY, PA. VS. CIVIL ACTION NIKOLAOS C. SEITZ, et al NO. 08-4006 (Consolidated Action) NOTICE OF INTENTION TO FILE PRAECIPE TO ENTER JUDGMENT OF DEFAULT AGAINST DEFENDANT BREWER TO: Scott McPartland Devon Brewer Law Offices of Leslie David Jacobson 1727 Penn Street, 8150 Derry Street, Suite A Harrisburg, PA 17102 Harrisburg, PA 17111 Devon Brewer 217 Reily Street Harrisburg, PA 17102 DATE OF NOTICE: Tuesday, March 9, 2010 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE AN ANSWER IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO DEFEND THE SUIT AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. BENNETT, BRICKLIN & SALTZBURG LLC GQQ BY KEVIN .BLAKE, ESQUIRE Attorney for Defendant Kiser ,_. ,,? -s a 3 ,?`???.. BENNETT, BRICKLIN & SALTZBURG LLC BY: Kevin M. Blake, Esquire Identification No. 77979 960 HARVEST DRIVE BUILDING B, SUITE 100 BLUE BELL, PA 19422 (267) 654-1100 blake@bbs-law.com USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer, et al vs. NIKOLAOS C. SEITZ, et al ATTORNEY FOR: Plaintiff Kiser COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION NO. 08-4006 (Consolidated Action) CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Request for Final Judgment by Default was served on all interested parties on this date by way of regular mail, postage pre-paid, addressed as follows: Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Joseph F. Rich, Esquire Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Richard J. Boyd, Jr., Esquire Nelson Levine DeLuca & Horst, LLC 518 Township Line Road, Ste. 300 Blue Bell, PA 19422 Scott McPartland Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111 Brooks Foland, Esquire THOMAS, THOMAS & HAFER, LLP 305 North Front Street Harrisburg, PA 17108 Tyler Yenna 200 Hidden Valley Lane Harrisburg, PA 17112 BENNETT, BRICKLIN & SALTZBURG LLC BY l? KEVIN M. BLAKE, ESQUIRE Date: March 24, 2010 Attorney for Plaintiff Thomas Kiser THOMAS, THOMAS & HAFER, LLP by: Brooks R. Foland, Esquire I.D. No. 70102 305 North Front Street Oh Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 (717) 237-7105 fax bfolandCatthlaw.com USAA CASUALTY INSURANCE COMPANY a/s/o DIANA R. LOYER, et al., Plaintiffs VS. NIKOLAOS SEITZ, et al. Defendants Counsel for Defendant Rebecca Krebs IN THE COURT OF COMMON PL S r., CUMBERLAND COUNTY, PENN LVI;'1IIA! CIVIL ACTION - LAW cn NO. 08-4006 (Consolidated Actio _ f JURY TRIAL DEMANDED OD ?$ PETITION TO MAKE RULE ABSOLUTE On February 22, 2010, the undersigned counsel filed a Petition for Leave to Withdraw as Counsel for Defendant Rebecca Krebs. 2. On March 2, 2010, this Honorable Court entered an Order issuing a rule on all parties to show cause why the above-mentioned Petition should not be granted. The rule was returnable 20 days after service. 3. More than twenty (20) days have elapsed since service of the Praecipe and Rule was made upon all parties without the Rule having been returned as directed. WHEREFORE, the undersigned counsel respectfully requests that the Rule be made absolute and be allowed to withdraw as counsel of record for Defendant Rebecca Krebs in the above-captioned consolidated matter. by: Respectfully submitted, CERTIFICATE OF SERVICE AND NOW this eday o#LL, , 2010, I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafe, eb y certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: COUNSEL FOR PLAINTIFF KISER: COUNSEL FOR CO-PLAINTIFF WITTERS: Kevin M. Blake, Esq. Bennett, Bricklin & Saltzburg, LLP 960 Harvest Drive Building B, Suite 100 Blue Bell, PA 19422 COUNSEL FOR SEITZ: Patrick J. Moran, Esq. William J. Ferren & Associates Ten Sentry Parkway, Suite 301 Blue Bell, PA 19422 COUNSEL FOR PLAINTIFF USAA/LOYER: Joseph F. Rich, Esq. Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Coleen M. Polek Richard J. Boyd, Jr., Esq. Nelson Levine DeLuca & Horst LLC 518 Township Line Road Ste. 300 Blue Bell, PA 19422 COUNSEL FOR BREWER: Scott McPartland, Esq. Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111-5260 APR '16 2010 USAA CASUALTY INSURANCE COMPANY a/s/o DIANA R. LOYER, et al., Plaintiffs VS. NIKOLAOS SEITZ, et al. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-4006 (Consolidated Action) JURY TRIAL DEMANDED ORDER AND NOW this / day of I , 2010, upon consideration of Thomas, Thomas & Hafer, LLP's Petition for Leave to Withdraw as Counsel for Defendant Rebecca Krebs, it is hereby ORDERED that approval is GRANTED to Brooks R. Foland, and Thomas, Thomas & Hafer, LLP, to withdraw as counsel for Defendant Rebecca Krebs in the above-captioned consolidated matter. BY THE COURT: 1___/ ?e /?1/4 Kevin . Hess, P.J. ?S V 0 -?, ca I; .Z_x "zr ?r t1 35 9, 4-W COZEN O'CONNOR BY: JOSEPH F. RICH, ESQUIRE Attorney I.D. No.: 92067 1900 Market Street Philadelphia, PA 19103 Phone: (215) 665-7285 Fax: (215) 701-2177 USAA CASUALTY INSURANCE COMPANY, a/s/o Diana R. Loyer Plaintiff V. NIKOLAOS C. SEITZ, Defendant. t- T'. ?Y Z11Q? ti -6 ;I'l !: 9 Attorneys for Plaintiff COURT OF COMMON PLEAS Cumberland County CIVIL ACTION NO.: 08-4006 (Consolidated Action) PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the attached complaint which was originally filed on November 9, 2009 and previously reinstated on March 18, 2010. COZEN O'CONNOR Dated: *0 Bye ?? JOSEPH F. RICH, ESQUIRE 1900 Market Street Philadelphia, PA 19103 215-665-7285 Attorneys for Plaintiff USAA Casualty Insurance Company, as subrogee of Diana R. Loyer *o-0(11 P b A*111 m,P- 41 &50 1 0 ay/1-73 4 CERTIFICATE OF SERVICE I, Joseph F. Rich, hereby certify that on May , 2010, I served a true and correct copy of the foregoing Praecipe to Reinstate Complaint on the following counsel of record and parties: Scott McPartland, Esquire Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111-5260 Attorneys for Defendant Devon Brewer Patrick J. Moran, Esquire Law Offices of William J. Ferren & Associates 10 Sentry Parkway, Ste. 301 Blue Bell, PA 19422 Attorneys for Defendant Nikoloas Seitz Kevin M. Blake, Esquire Bennett, Bricklin & Saltzburg, LLP Five Valley Square, Suite 200 512 Township Line Road Blue Bell, PA 19422 Attorneys for co-Plaintiff Thomas Kizer Richard J. Boyd, Jr., Esquire Nelson Levine de Luca & Horst, LLC 518 Township Line Road, Suite 300 Blue Bell, PA 19422 Attorneys.for co-Plaintiff Kathy M. Witters Brooks Foland, Esquire Thomas, Thomas & Haefer, LLP 305 North Front Street Harrisburg, PA 17108 Attorneys for Defendant Rebecca Krebs v- J EPH F. RICH, ESQUIRE THOMAS, THOMAS & HAFER, LLP by: Brooks R. Foland, Esquire I.D. No. 70102 305 North Front Street 6m Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 (717) 237-7105 fax bfoland@tthlaw.com THOMAS KISER, Plaintiff vs. NIKOLAOS SEITZ, et al., Defendants T' 1 A ay 2010 HAY -6 Prl 31: 47 1A ?; IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-4006 (consolidated action) JURY TRIAL DEMANDED WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Pursuant to the Court's Order of April 19, 2010, please withdraw our appearance on behalf of Defendant Rebecca Krebs in the above matter. Respectfully submitted, THOMAS, by: d, Ekquire I.D. No. 70102 305 North Front Street, 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7626 CERTIFICATE OF SERVICE AND NOW, this J day of , 200 I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Kevin M. Blake, Esq. Bennett, Bricklin & Saltzburg, LLP Five Valley Square Suite 200 512 Township Line Road Blue Bell, PA 19422 Patrick J. Moran, Esq. William J. Ferren & Associates Ten Sentry Parkway, Suite 301 Blue Bell, PA 19422 Joseph F. Rich, Esq. Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Richard J. Boyd, Jr., Esq. Nelson Levine DeLuca & Horst LLC 518 Township Line Road Ste. 300 Blue Bell, PA 19422 Scott McPartland, Esq. Law Offices of Leslie David Jacobson 8150 Derry Street, Suite A Harrisburg, PA 17111-5260 Coleen M. Polek 808512.1 g86'?S USAA Casualty Insurance Company, a/s/o Diana R. Loyer v. Nikolaos C. Seitz COURT OF COMMON Pi,EAS CUMBERLAND COUNTY, PA Consolidated Action No.: 2008-400b Jury Trial Demanded Thomas Kiser COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA ~• Civil Action -Law Nikolaos Seitz, et al. NO.: 2008-04832 Jnry Trial Demanded Kathy M. Witters COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA ,..,, v. ~ ~ ~ ~; ~, • Nikolaos Seitz, Rebecca Krebs NO.: 2009-4259 ~ -~ ~: r ~ ~ c_r -.- ~ _.~ ~ j? and Devin Brewer _ Jury Trial Demanded ~ ~ t ra -~ ~'~- ORDER TO SETTLE, 7 ". DISCONTINUE AND END r.: `~ ~.'" ~..~• ~ _ r. -^_, TO THE PROTHONOTARY: ~ ~ Kindly marked the above consolidated aci9on Settled, Discontinued and Ended. COZEN O'CONNOR B . ~~ J h F. Rich, uire ttomey for PlaintiffUSAA/Loyer BENNETT, BRICKLIN & SALTZBURG, LLP By: ~- evin M. Blake, Esquire Attorney for Plaintiff Thomas Kiser NELSON, LEVINE, DeLUCA & HORST, LLC . ; ~. Richard J. Boyd, Jr., Esquire Attorney for Plaintiff Kathy M Witters WILL FE & ASS IATES By: ~ ~.. Patrick J. Mo quire Attorney for endant, Nikolaos Seitz