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HomeMy WebLinkAbout09-0773w NOTICIA LE HAN DEMANDADO A LISTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990-9108 STATE ,FARM MUTUAL AUTOMOBILE : IN THE COURT OF COMMON PLEAS INSURANCE COMPANIES, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. a y- 7731 V. CIVIL ACTION - LAW DONALD R. WARD, Defendant COMPLAINT 1. The Plaintiff is a corporation duly licensed to write insurance in the Commonwealth of Pennsylvania and having an office at P.O. Box 41, Concordville, Pennsylvania 19331. 2. The Defendant is an adult individual residing at 12509 Buffalo Terrace, Millerstown, Pennsylvania 17062. 2. At all times relevant hereto Plaintiff had issued an automobile liability insurance policy covering the 2001 Chrysler Town & Country van which was owned by Allison Cranford and Curt C. Cranford. 3. On or about July 9, 2007, Curt C. Cranford was operating the Chrysler Town & Country van southbound on the Carlisle Pike and had stopped for a traffic light at 6444 Carlisle Pike. 4. At the time and place aforesaid, Defendant was operating a vehicle southbound on the Carlise Pike and failed to bring his vehicle to stop before striking the Cranford vehicle. 5. The aforesaid accident and damages resulting therefrom were due solely to the negligence of the Defendant in that he: a) failed to keep a proper lookout for other vehicles; b) failed to have his vehicle under control; C) operated his vehicle at a speed so as to be unable to stop within the clear assured distance ahead; d) failed to avoid striking a stopped vehicle. 6. Solely as a result of Defendant's negligence, Plaintiff was required under the terms of its insurance policy to pay for repairs to the Cranford vehicle. The total amount paid by State Farm was FIVE THOUSAND FIVE HUNDRED FOUR and 96/100 ($5,504.96) DOLLARS. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount not in excess of mandatory arbitration limits. Dated: ,? 1 it I Dq Respectfully submitted, WIX, WENGER & WEIDNER 13y &G Ati- h WyA Richard H. Wix, Esq., ID #07274 Attorneys for Plaintiff 4705 Duke Street Harrisburg, PA 17109-3041 (717) 652-8455 2 .,? w , _ . S? O ? ,G .< rcv SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2009-00773 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STATE FARM MUTUAL AUTOMOBILE VS WARD DONALD R R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT WARD DONALD R but was unable to locate Him deputized the sheriff of PERRY serve the within COMPLAINT & NOTICE County, Pennsylvania, to On February 23rd , 2009 , this office was in receipt of the attached return from PERRY Sheriff's Costs: So answers: Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline DEPUTIZE PERRY CO 34.00 Sheriff of Cumberland County .00 71.00 02/23/2009 WIX, WENGER, WEIDNER Sworn and subscribe to before me this day of to wit: in his bailiwick. He therefore A. D. 9Z C]j HAI In The Court of Common Pleas of Cumberland County, Pennsylvania State Farm Mutual Automobile Insurance Companies vs. Donald R. Ward 12509 Buffalo Terrace Millerstown, P 17062 Civil No. 2009-773 Now, February 12, 2009, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Perry County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, February Z.? 20 09, at 7:06 o'clock P M, served the within Noticer & Complaint upon Donald R. Ward at 12509 Buffalo Trace Millerstown, PA (Saville Twp) 17062 by handing to, a True &Attested and made known to Sworn and subscribed betqQ?? e me this l $, day of dr , ,2Q)' copy of the original Notice & Complaint Him So ans Deputy Sheriffof COMMgMEAITH OF PENNSYLVANIA NUFARIAL MARGARET F. FtICMER, ft" Pu* Bk nrrtl W 8oro. (Perry County ?+: Cam et?.t8 M2 Donald R. Ward, Defendant the contents thereof. COSTS SERVICE_ MILEAGE_ AFFIDAVIT Alan-D. Houck County, PA Karen W. Miller, Esquire Attorney I.D. #200037 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Fax: (717) 232-2766 Attorneys for Defendant, Donald R. Ward STATE FARM MUTUAL AUTOMOBILE : IN THE COURT OF COMMON PLEAS INSURANCE COMPANIES, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. : CIVIL ACTION -LAW DONALD R. WARD, Defendant NO. 09-773 Civil Term PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter our appearance on behalf of the Defendant, Donald R. Ward, to the above- captioned matter. Respectfully submitted, Date: April 27, 2009 By: -W ' )-ij& aren W. Miller, Esquire Attorney I.D. #200037 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Fax: (717) 232-2766 Attorneys for Defendant, Donald R. Ward 06621-198/147843 .46 CERTIFICATE OF SERVICE AND NOW, this 27A day of April, 2009, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Richard H. Wix, Esquire WIX, WENGER & WEIDNER 4705 Duke Street Harrisburg, PA 17109-3041 CALDWELL & KEARNS By: 06621-198/147843 r RL 2909 FR 28 AN 11: 58 fry, Karen W. Miller, Esquire Attorney I.D. #200037 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717)232-7661 Fax: (717) 232-2766 Attorneys for Defendant Donald R. Ward STATE FARM MUTUAL AUTOMOBILE IN THE COURT OF COMMON PLEAS INSURANCE COMPANIES, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. :CIVIL ACTION -LAW DONALD R. WARD, vs. DAVE PUNT, Defendant NO. 09-773 Civil Term Additional Defendant DEFENDANT DONALD R. WARD'S RESPONSE TO PLAINTIFF/COUNTERCLAIM DEFENDANT STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANIES' PRELIMINARY OBJECTIONS AND NOW comes the Defendant, Donald R. Ward, by and through his attorneys, Caldwell & Kearns, P.C., and files the within Response to Plaintiff/Counterclaim Defendant State Farm Mutual Automobile Insurance Companies' Preliminary Objections to Defendant's Counterclaim, and in support thereof, avers the following: Admitted. 2. Denied. The Moving Defendant cites the Complaint, and the Complaint is a document which speaks for itself, and any characterization of it is denied. 2. [sicJ Admitted in part, denied in part. It is admitted that Defendant Donald Ward filed an Answer, New Matter and Counterclaim to the Complaint; however, such document was filed on July 21, 2009. 3. Denied. The Moving Defendant cites the Answer with New Matter and Counterclaim, and this Answer with New Matter and Counterclaim is a document which speaks for itself, and any characterization of it is denied. 4. Denied. The Moving Defendant cites the Answer with New Matter and Counterclaim, and this Answer with New Matter and Counterclaim is a document which speaks for itself, and any characterization of it is denied. Denied. The Moving Defendant cites the Answer with New Matter and Counterclaim, and this Answer with New Matter and Counterclaim is a document which speaks for itself, and any characterization of it is denied. 6. Denied. The Moving Defendant cites the Answer with New Matter and Counterclaim, and this Answer with New Matter and Counterclaim is a document which speaks for itself, and any characterization of it is denied. 7. Denied. The Moving Defendant cites the Answer with New Matter and Counterclaim, and this Answer with New Matter and Counterclaim is a document which speaks for itself, and any characterization of it is denied. 8. Denied. The Moving Defendant cites the Answer with New Matter and Counterclaim, and this Answer with New Matter and Counterclaim is a document which speaks for itself, and any characterization of it is denied.. MOTION TO DISMISS -DEMURRER 9. Denied as a conclusion of law to which no response is required. 10. Denied as a conclusion of law to which no response is required. 11. Denied as a conclusion of law to which no response is required. 13. [sicJ Denied as a conclusion of law to which no response is required. By way of further Answer, whether or not Defendant Ward can produce evidence to support his claim is a matter to be determined through discovery and not through preliminary objections. By way of still further Answer, Moving Defendant is attempting to argue the sufficiency of the evidence, which is not the appropriate standard for preliminary objections. Willet v. Pennsylvania Medical Cat. Loss Fund, 702 A.2d 850, 853 (Pa. 1997) (citing County of Allegheny v. Commonwealth, 490 A.2d 402 (Pa. 1985)). 14. Denied as a conclusion of law to which no response is required. WHEREFORE, Defendant Donald R. Ward respectfully requests this Honorable Court DISMISS Plaintiff/Counterclaim Defendant State Farm Mutual Automobile Insurance Companies' Preliminary Objections, and SUSTAIN Defendant's Counterclaim against Plaintiff/Counterclaim Defendant State Farm Mutual Automobile Insurance Companies. Respectfully submitted, AL WELL & KEARNS, P.C. Dated: ~ + ~ ~ By: ~~'~"-' ~ . K ren W. Miller, Esquire Attorney I.D. #200037 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 Facsimile Attorneys for Defendant Donald R. Ward VERIFICATION I, KAREN W. MILLER, Esquire, Attorney for Defendant, Donald R. Ward, who is authorized to make this Verification on Defendant's behalf, verify that the information contained in the foregoing document is true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: l ~ ~J Karen W. Miller, Esquire CERTIFICATE OF SERVICE AND NOW, this ,L-- day of ~f,L , 2009, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Richard H. Wix, Esquire WIX, WENGER & WEIDNER 4705 Duke Street Harrisburg, PA 17109-3041 Gary A. Drakas, Esquire FORRY/ULLMAN Walnut Hill Plaza 150 South Warner Road, Suite 450 King of Prussia, PA 19406 CALDWELL ARNS By: i'! 06621-198/ 154152 y .w~ rN~Y~ 2aQ90CT -2 PM 12~ SS ~"' C.1 ,~~VSI~~~~rls Vf/~. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANIES v. DONALD R. WARD, Defendant V. DAVE PUNT, Additional Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C .°~.. ci • ..~ 3 ~_ ~ rn~ ' • ~ y_..~ \ ~ ~_'t ~J ~~ No. 09-773 Civil Term ~ r--= i fc° n -~ IN RE: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANIES AND DAVE PUNT'S PRELIMINARY OBJECTIONS ORDER OF COURT AND NOW, this 13th day of May, 2010, upon consideration of the Preliminary Objections filed by the Plaintiff and Additional Defendant, the Defendant's responses thereto, the briefs filed by the Parties, and after argument in the matter, and the Court noting that the Defendant has filed an amended Answer and New Matter which includes the affirmative defense of accord and satisfaction; IT IS HEREBY ORDERED AND DIRECTED that: 1. Additional Defendant, Dave Punt's, Preliminary Objection to Defendant's Joinder Complaint is SUSTAINED; 2. Defendant, Donald Ward's, Joinder Complaint against Additional Defendant Dave Punt is DISMISSED; 3. Plaintiff, State Farm Mutual Automobile Insurance Companies' Preliminary Objection against Defendant, Donald Ward's Counterclaim is SUSTAINED; 4. Defendant, Donald R. Ward's, Counterclaim against Plaintiff/C;ounterclaim Defendant State Farm Mutual Automobile Insurance Companies is DISMISSED. By the Court ~~ M. L. Ebert, Jr., ~ J. /Karen W. Miller, Esq. Attorney for Donald R. Ward /Gary A. Drakas, Esq. Attorney for State Farm Mut. Auto. Ins. Co. and for Dave Punt .5//31~rd 2 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANIES v. DONALD R. WARD, Defendant v. DAVE PUNT, Additional Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. 09-773 Civil Term. IN RE: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANIES AND DAVE PUNT'S PRELIMINARY OBJECTIONS OPINION AND ORDER OF COURT Ebert, J., May 13, 2010 - This opinion addresses Plaintiff State Farm Mutual Automobile Insurance Companies and Additional Defendant Dave Punt's Preliminary Objections. For the reasons set forth in this opinion, this Court finds these Preliminary Objections are sustained. STATEMENT OF FACTS This case arises from an automobile accident that occurred on or about July 9, 2007 between Kurt C. Cranford (hereinafter Cranford) and Defendant.l State Farm Automobile Insurance Company (hereinafter Plaintiff) is a corporation duly licensed to write insurance in the Commonwealth of Pennsylvania and having an office at P.O. Box 41, Concordville, Pennsylvania 19331.2 Plaintiff is the insurer of Cranford, whose vehicle was damaged when it was struck from behind by a vehicle operated by Defendant.3 The Defendant is an adult ' Pl.'s Compl., Feb. 12, 2009, ¶ 3, 4. z Pl.'s Compl., Feb. 12, 2009, ¶ 1. s Pl.'s Compl., Feb. 12, 2009, ¶ 2, 5. 3 individual residing at 12509 Buffalo Terrace, Millerstown, Pennsylvania 17062.4 Plaintiff was required to pay $5,504.96 for the property damage of Cranford's vehicle.5 Dave Punt (hereinafter Additional Defendant) is aduly-licensed and authorized agent of Plaintiff to write insurance in the Commonwealth of Pennsylvania, and has an office at 4911 Derry Street, Harrisburg, Pennsylvania 17111.6 Dave Pasquali (hereinafter Pasquali) was acting as agent for Defendant through his insurance company, Progressive Northern Insurance Company (hereinafter Progressive). Defendant's insurance policy through Progressive provided for $5,000.00 of property damage coverage.8 On or about July 13, 2007, Pasquali met with Cranford and his wife, Allison Cranford, at the office of Additional Defendant.9 Also present for the meeting was an unidentified female employee/agent of Additional Defendant.10 Cranford requested reimbursement for his $250.00 collision deductible, his rental car expenses and for his children's car seats that were damaged in the accident.ll These amounts totaled $2,612.64.12 Pasquali explained to Cranford that only $5,000.00 was available in property damage coverage; therefore, Plaintiff had to agree to settle the entire claim for the policy limits before the expenses could be paid directly to Cranford since the vehicle damages alone exceeded the policy limits.13 Allegedly, the Additional Defendant's unidentified female employee/agent, acting on behalf of Plaintiff and Additional Defendant, granted the agent for Defendant permission to pay Cranford directly for the aforementioned expenses, and furthermore, agreed to accept the a Pl.'s Compl., Feb. 12, 2009, ¶ 2. s Pl.'s Compl., Feb. 12, 2009, ¶ 6. 6 De£'s Joinder Compl., July 21, 2009, ¶ 3. Def.'s Joinder Compl., July 21, 2009, ¶ 11. a Def.'s Joinder Compl., July 21, 2009, ¶ 12. 9 Def.'s Joinder Compl., July 21, 2009, ¶ 10. 10 De£'s Joinder Compl., July 21, 2009, ¶ 13. " De£'s Joinder Compl., July 21, 2009, ¶ 14. 12 Def.'s Joinder Compl., July 21, 2009, ¶ 14. 13 De£'s Joinder Compl., July 21, 2009, ¶ 15. 4 remainder of the $5,000.00 limit as full and final settlement of the claim, regardless of the fact that the total damages caused by Ward exceeded that amount.14 As a result of this alleged agreement, Progressive issued a check in the amount of $2,612.64 directly to Cranford.ls Progressive sent a property damage release to Plaintiff for $2,387.36, the remainder of the $5,000.00 limits.16 On October 7, 2007, Progressive received a telephone call from Plaintiff's Subrogation Unit, indicating that they would not accept the remainder of the policy limits, $2,387.36, pursuant to the alleged agreement entered into by Additional Defendant's agent on behalf of Plaintif£i~ PROCEDURAL HISTORY On February 12, 2009, Plaintiff instituted the above action against Defendant in the Court of Common Pleas of Cumberland County, Pennsylvania. On July 21, 2009, Defendant filed an Answer with New Matter and Counterclaim in response to Plaintiff's Complaint. On July 21, 2009, Defendant also filed a Joinder Complaint against Additional Defendant. On August 18, 2009, Defendant filed a Motion to Compel Plaintiff's Answers to Production of Documents and Interrogatories. On August 19, 2009, this Court ordered Plaintiff to file responses to the Request of Production of Documents and Interrogatories filed by Defendant. On September 14, 2009, Additional Defendant filed preliminary objections to Defendant's Joinder Complaint. On September 14, 2009, Plaintiff, as Counterclaim Defendant, filed Preliminary Objections to Defendant's Counterclaim. On September 15, 2009, Plaintiff, as a Counterclaim Defendant, and Additional Defendant filed a Praecipe to List Case for Argument, for this Court to address the preliminary objections. On October 1, 2009, Defendant filed an Amended Answer with New is Def.'s Joinder Compl., July 21, 2009, ¶ 16. 15 Def.'s Joinder Compl., July 21, 2009, ¶ 17. 16 Def.'s Joinder Compl., July 21, 2009, ¶ 18. " De£'s Joinder Compl., July 21, 2009, ¶ 19. 5 Matter and Counterclaim. On October 1, 2009, Defendant filed a kesponse to Additional Defendant's Preliminary Objections to Defendant's Joinder Complaint. On October 2, 2009, Defendant filed a Response to Plaintiff/Counterclaim Defendant's Preliminary Objections to Defendant's Counterclaim. The matter is now before this Court. DISCUSSION In ruling on preliminary objections, "this Court must accept all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom as admitted and true and decide whether, based on the facts averred, recovery is impossible as a matter of law." Wa per v. Waitlevertch, 774 A.2d 1247, 1251 (Pa. Super. 2001) (internal citations omitted). However, in ruling on a demurrer, this Court "need not consider the pleader's conclusions of law, unwarranted inferences from facts, opinions, or argumentative allegations." Id. In this action, Defendant is attempting to restrict the amount that he must pay in damages to the $5,000.00 limit covered by his insurance policy despite having caused a greater amount of damage. Taking into account the damage to Cranford's vehicle amounting to $5,504.96 and the $2,612.64 amount already paid to Cranford to cover his collision deductible, rental car expenses and damaged children's car seats the total amount of the damage resulting from the accident is $8,117.60. A. Recovery Against Additional Defendant Punt As permitted by Pa. R.C.P. 2252(a)(4), Defendant "may join as an additional defendant any person not a party to the action who maybe liable to or with [Defendant] on any cause of action arising out of the transaction ... upon which [Plaintiff's] underlying cause of action against [Defendant] is based." Defendant alleges a breach of contract by Additional Defendant. Defendant in his counterclaim against Plaintiff also alleges, in essence, a breach of contract, in 6 that Plaintiff failed to accept the remainder of the policy limits, ($2,387.36), tendered by Progressive as full and final settlement. However, this is not a valid cause of action against Additional Defendant because "[i]t is a basic tenet of agency law that an individual acting as an agent for a disclosed principal is not personally liable on a contract between the principal and a third party unless the agent specifically agrees to assume liability." Casey v. GAF Corp., 828 A.2d 362 (Pa. Super. 2003). Plaintiff, State Farm Automobile Insurance Company, was a disclosed principal. Additional Defendant was acting as an agent on behalf of Plaintiff. An unidentified female employee was acting as an agent on behalf of Additional Defendant and Plaintiff. The transaction from which this cause of action arises was an alleged agreement that was made between Defendant and the unidentified female agent who was acting on behalf of Plaintiff, a disclosed principal. Thereafter, the principal, State Farm Automobile Insurance Company, refused to honor this agreement. Additional Defendant cannot be held personally liable because the alleged agreement was formed between Defendant and Plaintiff, through one of its agents. A "[p]erson who is contracting as agent maybe found to be personally liable where he or she either executes a contract in his or her own name or voluntarily incurs personal responsibility." In re Estate of Duran, 692 A.2d 176, at 179 (Pa. Super. 1997). The alleged agreement made by Plaintiff s agent was made on Plaintiff's behalf, not in Additional Defendant's own name and Additional Defendant incurred no personal responsibility. Accordingly, as a matter of law, Defendant cannot recover from Additional Defendant Punt. 7 B. Counterclaim Against Plaintiff State Farm Next, this Court will examine the counterclaim of Defendant/Counterclaim Plaintiff Ward against Plaintiff/Counterclaim Defendant State Farm Mutual Automobile Insurance Company in which a breach of contract is alleged. "A breach of contract claim in Pennsylvania requires three elements: (1) the existence of a contract (2) a breach of a duty imposed by the contract and (3) resulting damages." J.F. Walker Co.. Inc. v. Excalibur Oil Group Inc , 792 A.2d 1269, 1272 (Pa. Super. 2002), citing Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881, 884 (Pa. Super. 2000). Turning to the contents of the Defendant Ward's counterclaim, and given the mandate that this Court must accept as true all material facts set forth in the counterclaim, we reluctantly accept Ward's position that he has adequately pled the existence of a contract. It is often said that an enforceable contract requires the parties to 1) reach a mutual understanding, 2) exchange consideration, and 3) delineate the terms of their bargain with sufficient clarity. Hel in v. Trustees of Univ. Of Pa., 969 A.2d 601 at 610 (Pa.Super. 2009). In this case, this Court is somewhat at a loss to understand what benefit State Farm would have received as a result of this "contract." Thus, there could be failure to demonstrate adequate consideration, and the existence of a contract may well be legally in doubt. However, for the purposes of simply evaluating these pleadings, the Court will accept Defendant Ward's position. Accepting the existence of a contract between Ward and State Farm, State Farm's failure to accept the remainder of the policy limits ($2,387.36) could be considered a breach. However, with regard to the last element, Defendant Ward does not seek any damages nor could he. In essence, he is asserting that he owes Plaintiff State Farm a lesser amount than State Farm had to pay for the damages caused by Ward to Kurt Cranford's automobile. 8 Defendant is basically pleading an affirmative defense of accord and satisfaction concerning the property damage claim. According to Pa. R.C.P. 1030, "all affirmative defenses including but not limited to the defenses of accord and satisfaction ... shall be pleaded in a responsive pleading under the heading `New Matter'." This affirmative defense is not properly asserted in the form of a counterclaim and should in fact be raised through new matter. Defendant Ward has basically admitted as much since he filed an amended Answer with New Matter which includes the affirmative defense of accordance and satisfaction on October 1, 2009. Therefore, Plaintiff, State Farm Mutual Automobile Insurance Companies' Preliminary Objection against Defendant's Counterclaim is sustained. CONCLUSION Based on the facts averred there does not exist a valid cause of action against Additional Defendant and so recovery is impossible as a matter of law. Furthermore, Defendant's affirmative defense of an accord and satisfaction is not properly asserted in the form of a counterclaim and should in fact be raised through new matter and so Plaintiff's Preliminary Objection against Defendant's Counterclaim is sustained. Accordingly the following order is entered: ORDER OF COURT AND NOW, this 13th day of May, 2010, upon consideration of the Preliminary Objections filed by the Plaintiff and Additional Defendant, the Defendants responses thereto, the briefs filed by the Parties, and after argument in the matter, and the Court noting that the Defendant has filed an amended Answer and New Matter which includes the affirmative defense of accord and satisfaction; IT IS HEREBY ORDERED AND DIRECTED that: 9 1. Additional Defendant, Dave Punt's, Preliminary Objection to Defendant's Joinder Complaint is SUSTAINED; 2. Defendant, Donald Ward's, Joinder Complaint against Additional Defendant Dave Punt is DISMISSED; 3. Plaintiff, State Farm Mutual Automobile Insurance Companies' Preliminary Objection against Defendant, Donald Ward's Counterclaim is SUSTAINED; 4. Defendant, Donald R. Ward's, Counterclaim against Plaintiff/Counterclaim Defendant State Farm Mutual Automobile Insurance Companies is DISMISSED. By the Court, ~~ M. L. Ebert, Jr., J. Karen W. Miller, Esq. Attorney for Donald R. Ward Gary A. Drakas, Esq. Attorney for State Farm Mut. Auto. Ins. Co. and for Dave Punt 10 ~. FfLE~~-.~;~;_ - :; }~ A 2u10 ~L~ ?0 ~'~i I ~ 39 STATE FARM MUTUAL AUTOMOBILE INSURANI Plaintiff v. DONALD R. WARD, IN THE COURT OF COMMON PLEAS CO., CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-773 Civil CIVIL ACTION -LAW TO THE HONORABLE, TIE JUDGES OF SAID COURT: Richard H. Wix Esquire, c unsel for the Plaintiff in the above action respectfully requests that: 1. The abov -captioned action is at issue. 2. The clai of the plaintiff in the action is 5 504.96. The coun erclaim of the defendant in the action is none. The following attorneys ar interested in the case(s) or are otherwise disqualified to sit as arbitrators: Karen W. filler Es uire WHEREFORE, your pet case shall be submitted. Respectfully submitted, ~~~~. Richard H. Wix, Esq., ID# 07274 (717) 652-8455 ORDER OF COURT AND NOW, action (or actions) as prays your Honorable Court to appoint three (3) arbitrators to whom the i for. 2010, in consideration of the foregoing petition, Esq., ,Esq., and Esq., are appointed arbitrators in the above captioned By the Court, P.J. ~et~.o0 PA ~T~ e~' ~oo~ e,*ay~.s~o CERTIFICATE OF SERVICE AND NO this 19th day of July, 2010, I, Gaye Crist, an employee of the firm of Wix, Wenger & We dner, attorneys for the Plaintiff hereby certify that I served the within Petition for App intment of Arbitrators this date by depositing a copy of same in the United States mail, po tage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Karen W. Mille ,Esq. Caldwell & Kea ns 3631 North Fro t Street Harrisburg, PA 17110 WIX, WENGER & WEIDNER Gaye ist a- ` z=1tE= f ~f. 'r 2Ci0 ~v~v ~ ~ I'~ I ~ 39 ,, ., G~~V9 - ;..,;v, ~....i' STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Plaintiff v. DONALD R. WARD, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-773 Civil CIVIL ACTION -LAW PETITIOf~ FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Richard H. Wix. Esquire, counsel fof the Plaintiff in the above action respectfully requests that: 1. The above-captioned action is at issue. 2. The claim of the plaintiff in the action is 5 504.96. The counterclaim df the defendant in the action is none. The following attorneys are interested in the case(s) or are otherwise disqualified to sit as arbitrators: Respectfully submitted, r ~ - ~~~~ ~ . ~.~ic Richard H. Wix, Esq., ID# 07274 (717) 652-8455 ORDER OF COURT WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. AND NOW, , 2010, in consideration of the foregoing petition, ,Esq., ,Esq., and w sq., are appointed arbitrators in the above captioned action or actions) as prayed for. c~ Q t~ ~.. r ~ r+~1 ~1 ~ ~ K•r~ t1~ ~~ ~ =~ ~r~ ~~'~ .; s4 g~~o~rc o .~~ By the Court'," P.J. ~a~•0O AA e+~ ~+~ e'"ay5sµo 'CERTIFICATE OF SERVICE AND NOW, this 19jth day of July, 2010, I, Gaye Crist, an employee of the firm of Wix, Wenger & Weidner, attorneys for the Plaintiff hereby certify that I served the within Petition for Appointment of Arbitrators this date by depositing a copy of same in the United States mail, postage pfepaid, in Harrisburg, Pennsylvania, addressed as follows: Karen W. Miller, Esq. Caldwell & Kearns 3631 North Front Strut Harrisburg, PA 17110'.. WIX, WENGER & WEIDNER Gaye ist STATE FARM MUTUAL IN THE COURT OF COMMON PLEAS OF INSURANCE COMPANIES, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. NO. 09-77/CIVIL DONALD R. WARD, Defendant ORDER AND NOW, this z' day of August, 2010, the appointment of Jacob Theis, Esquire, as a member of the Board of Arbitrators in the above-captioned case is VACATED. Wayne S. Martin, Esquire, is appointed in his place. BY THE COURT. Kevin /,'I. Hess, P. J. z Robert P. Kline, Esquire G Chairman, Board of Arbitrators Court Administrator :rlm C rpl hl, ? r 436 Plaintiff In The Court of Common Pleas of Cumberland County, Pennsylvania No._pc Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office elit F Signature ign t e! Signa ure X. C-?eql Name (Chairman) Law Firm Address ) PA City, zip [q6`/ S 1';?- (,p tI k I7 Name i Law Firm 1 0 V0C°syt Address ? ? iVi Y, V'M , " r` I t City, zip 162.'78 Award Name Law Firm f??r Address t'4 // /old City, Zip " :"''t a, Sob Pc-L We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the //// a/16 following award: (Note: If damages for delay are awarded, they shall be separately stated.) ),A4 6h'+°' dX- c 9-)X77 ,4- 2? A-r, i S 'r l . Arbitrator, dissents. (Insert name if applicable.) I Date of Hearing: `?l Zy C5 Date of Award: 1 ) 0-'? 20C) (Chairman) Notice of. utrS??'of' Awai z? ' Now, the ! ay of J?? - 1 , 0 16 at .M., the above award was entered upon the docket and notice thereof given b), r nail to tlie:partics or their attorneys. Arbitrators' compensation to be paid upon appeal, By: Prothonotary Deputy ?"