HomeMy WebLinkAbout04-2060COZEN O'CONNOR
William F. Stewart, Esq.
200 Four Falls Corporate Center
Suite 400
West Consbobocken, PA 19428
{610-832-8356
Attorney for Plaintiff
{Caliber One Indemnity Company
Caliber One Indemnity Company
Plaintiff,
Balanced Care Corporation
BCC Management and Development Co.
Nationwide Health Properties, Inc.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
{Terns}
No. dY-t --- ,,2060
Defendant.
COMPLAINT
NOTICE TO DEFEND
AVISO
You have been sued in court. If you wish to defend against the
claims set forth in the following pages, you must taken action
within twenty (20) days at, er this complaint and notice are
served by entering a written appearance personally or by
attorncy and filing in writing with the court your defense 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 plaintitT You may
lose money or property or other rights important to you.
Le hah demandado a usted en la corte. Si usted quiere
defendersc de estas demandas expuestas en las paginas
signuientes, usted tiene veinte (20) dias de plazo al panir de la
fecha de la demanda y la notificacion. Hace falta assentar una
comparencia escrita o en persona o con un abogado y entregar
a la cone 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 courte tomara medidas y puede continuar la
demanda en contra suya sin previo aviso o notificacion.
Adernas, la corte puede decidir a favor del demandante y
requiere que usted compla con todas las provisiones de esta
demanda, usted puede perder dinero o sus propiedades u otros
derochos importantes para usted.
Yott Mtotthl tahe this patIer to your lawyer at once. lf you do
t~ot have a la~vyer or cannot afford one, go to or telephotte
the office set forth below to find out where you can get legal
help.
Lleve esta demanda a att abogado i#ttuediatamente, si no
tiette abogado o si no tiene el dlttero sttficiente de#agar tal
servieio, l/aya en per$ona o llamepor telefono a la oficina
euya dlreeeiott se encuentra excrita abajo pard averlguar
donde se puede consegair a$ixtetteia legal.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telephone (800)990-9108
COZEN O'CONNOR
BY: WILLIAM F. STEWART, ESQUI2RE
IDENTIFICATION NO, 59167
200 Four Falls Corporate Center
Suite 400
P.O. Box 800
West Conshohocken, PA 19428-0800
Telephone No. (610) 832-8356
Attorney for Plaintiff, Caliber One
Indemnity Company
Caliber One Indemnity Company
One Oxford Valley, Suite 505
Langhorne, PA
Plaintiff,
V.
Balanced Care Corporation
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
BCC Management and Development Co.
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
Nationwide Health Properties, Inc.
610 Newport Center Drive
Suite 1150
Newport Beach, California 92660
Defendants.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
{Term}
No.
COMPLAINT FOR DECLARATORY JUDGMENT
AND NOW, comes plaintiff, Caliber One Indemnity Company, by and through its
attorneys Cozen O'Connor, and states the following claim against defendants:
THE PARTIES
1. Plaintiff, Caliber One Indemnity Company ("Caliber One") is a corporation duly
organized and existing under the laws of the State of Delaware, with its principal place of
business at One Oxford Valley, Suite 505, Langhome, PA 19047 and at all times relevant hereto
was duly authorized to issue insurance policies in the Commonwealth of Permsylvania.
2. On information and belief, defendant, Balanced Care Corporation ("BCC") is a
Delaware corporation with its principal place of business at 1215 Manor Drive, Mechanicsburg,
Pennsylvania 17055.
3. On information and belief, defendant, BCC Management and Development Co.
("BCC Development") is a Delaware corporation with its principal place of business at 1215
Manor Drive, Mechanicsburg, Pennsylvania 17055.
4. On information and belief, defendant, Nationwide Health Properties, Inc. ("NHP"), is
a Maryland corporation with its principle place of business at 610 Newport Center Drive, Suite
1150, Newport Beach, California 92660.
5. Venue is proper in this Court as the defendants are located in or regularly conduct
business in Cumberland County, Pennsylvania and/or certain transactions and occurrences out of
which plaintiff's cause of action have arisen took place in Cumberland County, Pennsylvania.
6. An actual case or controversy of a justiciable nature exists between the parties
involving their respective rights and liability under a policy of insurance and dependent on
construction of that policy, which controversy can be determined by a judgment in this, without
other, suits. Litigation between the parties with respect to this controversy is imminent and
inevitable.
THE UNDERLYING LITIGATION
7. The underlying litigation at issue in this declaratory judgment action was initiated by
a complaint NHP filed against BCC Development, BCC and corporations known as Bullock Tice
Associates, Inc. and H.F. Lenz Company.
8. An Amended Complaint was filed in the underlying litigation against the same parties
in or about August 2003. A copy of that Amended Complaint (hereinafter "Underlying
Amended Complaint") is attached hereto as Exhibit "A."
2
9. The Underlying Amended Complaint alleges that on or about June 26, 1998, NHP
and BCC Development entered into a contract ("Development Contract') for the construction of
improvements to be used as an assisted living facility on NHP's property located at 2310 Abbie
Lane, Pensicola, Florida. (Underlying Amended Complaint at ¶¶ 8 and 9.)
10. Paragraph 10 of the Underlying Amended Complaint further alleges that pursuant to
the Development Contract, BCC Development was the developer of the project and was
responsible for all phases of development and coordinating all service and material providers for
the construction project, including: (1) contracting directly with the various sub-contractors,
design professionals and suppliers; (2) causing the improvements to be completed in compliance
with all requirements of the Development Contract and the plans and specifications for the
construction project; (3) providing sufficient supervision to ensure compliance with plans and
applicable laws, rules and regulations; and (4) ensuring that all work by it and any subcontractors
would be performed in a competent and workmanlike manner utilizing professionally accepted
standards. (Underlying Amended Complaint at ¶10.)
I 1. Paragraph 11 of the Underlying Amended Complaint alleges that pursuant to the
Development Contract, BCC was guarantor of BCC Development's obligations under the
Development Contract. BCC, however, was not a party to that agreement.
12. According to the Underlying Amended Complaint, BCC Development contracted
directly with numerous subcontractors, design consultants and others to provide services and
materials needed to complete the construction project and eventually assigned all such contracts
to NHP. (Underlying Amended Complaint at ¶12.)
13. The Underlying Amended Complaint further alleges that the construction of the
improvements referenced in the Development Contract were substantially completed and the
facility occupied on or about March 2000. (Underlying Amended Complaint at ¶14.)
14. According to the Underlying Amended Complaint, on or about January 12, 2001,
NHP and BCC Development and BCC entered into an agreement which contained a provision
3
that assigned to NHP any and all contracts and causes of action held by BCC Development as a
result of the Development Contract or construction project. (Underlying Amended Complaint at
¶~115 and 16.)
15. The Underlying Amended Complaint also alleges that this agreement also contained
general mutual releases between NHP and BCC and BCC Development, but such releases apply
only to claims in excess of any insurance coverage carried by BCC or BCC Development and did
not apply to claims of fraudulent, willful or intentional misconduct by BCC or BCC
Development. (Underlying Amended Complaint at ¶17.)
16. Paragraph 18 of the Underlying Amended Complaint alleges that several months after
the building was occupied, certain defects in construction and/or design of the building became
apparent, i.e., the building was experiencing severe humidity and related problems, including,
but not limited to, excess water, mildew, rusting of metal surfaces and delamination of certain
construction materials.
17. Paragraph 19 of the Underlying Amended Complaint asserts that at the time the
January 12,2001 agreement was executed, BCC and BCC Development had specific knowledge
of the extent of the defects and source of the problems and failed to disclose them to NHP, which
was unaware of the defects.
18. The Underlying Amended Complaint further alleges that ifNHP was aware of the
cause of the defects, it would not have executed the release language in the agreement.
Therefore, BCC and BCC Development committed fraudulent, willful and intentional acts within
the meaning of the agreement. (Underlying Amended Complaint at ¶19.)
19. The Underlying Amended Complaint asserts that after an investigation was
completed in April 2001, NHP discovered that the high humidity and related problems were
caused by defects in the design and construction of the building and its components.
(Underlying Amended Complaint at ¶20.)
4
20. According to the Underlying Amended Complaint, the defective design and
construction problems include, but are not limited to the following:
a) extreme negative air pressure inside the building;
b) inoperative air conditioning units;
c) inoperable ceiling exhaust fans
d) inadequately and/or improperly designed or installed PTHP (air
conditioning/heat pump) units and systems serving each residential
unit providing inadequate air flow and oversized cooling capacity;
e) inadequately and/or improperly designed and/or installed air
conditioning units and systems serving common areas of the
building;
0 inadequately and/or improperly designed exhaust fan systems in
residential units in common areas
g) inadequately and/or improperly designed exhaust fan systems in
the attic spaces;
h) use of fibrous glass duct material in violation of applicable code
provisions;
i) violation of code provisions applicable to supply air sources for
individual resident units;
j) improper venting and exhaust air systems in water heater enclosure
areas in violation of applicable code provisions;
k) improperly conducted and/or designed fire safety wall;
l) improperly prepared adapted construction drawings;
m) improperly designed attic ventilation system in violation of
applicable code provisions; and
n) improper installation and insulation of roof system.
(Underlying Amended Complaint at ~21 (a) - (n))
21. In Count I of the Underlying Amended Complaint, NHP alleges that defendants BCC
Development and BCC breached their contract with NHP by committing or being responsible for
5
the construction and/or design defects and thus are liable to NHP for any damages that fall within
any insurance limits carried by either BCC or BCC Development and for any willful, fraudulent
and intentional breaches regardless of whether they fall within insurance limits or not.
22. Count III of the Underlying Amended Complaint alleges that each defendant violated
Fla. Stat. Ch. 553.84 in that they designed and/or constructed certain features of the development
project in violation of applicable building codes. (Underlying Amended Complaint at ~[34 and
35.)
23. The Underlying Complaint further asserts that as a direct and proximate result of
BCC and BCC Development's breaches of duty and the defects in the construction and/or design
of the construction project and their violations of the building code, NHP suffered damages
including, but not limited to, the cost of repairs and diminution in value to the construction
project.
24. By way of an August 19, 2002 letter addressed to BCC, Caliber One agreed to
provide it with a defense with respect to the Underlying Complaint and has reserved its right to
deny coverage and to seek reimbursement of defense costs and attorneys fees incurred in the
defense of Balanced Care Corporation with respect to the underlying litigation.
COUNT I - DECLARATION
25. Caliber One repeats and realleges paragraphs 1 through 25 as if set forth fully at
length herein.
26. Caliber One issued a commercial general liability and professional liability policy of
insurance to Balanced Care Corporation, Policy No. GPO 0001122-01, with effective dates of
January 25, 2000 to January 1, 2001.
27. BCC Development is not an insured under that policy.
28. The policy contains a commercial general liability coverage form, form No.
COI.P021 (6/98). This form states, in part, as follows:
6
SECTION I. COVERAGES
COVERAGE A. BODILY INJURY AND PROPERTY
DAMAGES
1. INSURING AGREEMENT
We will pay those sums that the insured becomes legally
obligated to pay as "damages" of "bodily injury" or
"property damage" to which this insurance applies. We
will have the right and duty to defend the insured against
any "suit" seeking those "damages". However, we will
have no duty to defend the insured against any "suit"
seeking "damages" for "bodily injury" or "property
damage" to which this insurance does not apply. We may,
at our discretion, investigate any "occurrence" and settle
any claim or "suit" that may result. But:
(1)
The amount we will pay for "damages" is limited as
described in LIMITS OF INSURANCE (SECTION
III); and
(2)
Our right and duty to defend end wben we have
used up the applicable limit of insurance in the
payment ofjudgrnents or settlements under
Coverages A or B.
No other obligation or liability to pay sums or perform acts or
services is covered unless explicitly provided for under
SUPPLEMENTARY PAYMENTS - COVERAGES A, B AND P.
This insurance applies to "bodily injury" and "property
damage" only iff
(1)
The "bodily injury" or "property damage" is caused by an
"occurrence" that takes place in the "coverage territory"; and
(2)
The "bodily injury" or "property damage" occurs during the policy
period.
29. The policy defines both "occurrence" and "property damage."
30. The policy defines "occurrence" as follows:
"Occurrence" means an accident, including continuous or repeated
exposure to substantially the same general harmful conditions.
31. The policy defines "property damage" as follows:
"Property damage" means:
A. Physical injury to tangible property including all resulting
loss of use of that property. All such loss of use shall be
deemed to occur at the time of the physical injury that
caused it;
B. Loss of use of tangible property that is not physically
injured. All such loss of use shall be deemed to occur at
the time of the "occurrence" that caused it.
32. The policy's definition of"property damage," precludes coverage for damages sought
by NHP.
33. Further, NHP does not allege the existence of an "occurrence" or "property damage"
caused by an "occurrence" within the meaning of the policy. As such, there is no coverage under
the policy.
34. The policy also requires that any "property damage" occur during the policy period.
Because the insured property did not sustain direct and physical loss during the policy period,
there is no coverage.
35. The policy is subject to certain exclusions. Under the "exclusions" section, the policy
states that the insurance does not apply to:
A."Bodily injury" or "property damage" expected or intended
from the stm~dpoint of the Insured...
B. "Bodily injury" or "property damage" for which the insured
is obligated to pay "damages" by reason of the assumption
of liability in a contract or agreement. This exclusion does
not apply to liability for "damages":
(1)That the insured would have in the absence of the
contract or agreement; or
(2) Assumed in a contract or agreement that is an
"insured contract", provided the "bodily injury" or
"property damage" occurs subsequent to the
8
execution of the contract or agreement. Solely for
the purposes of liability assumed in an "insured
contract," reasonable attorney fees and necessary
litigation expenses incurred by or for a party other
than an insured are deemed to be "damages"
because of "bodily injury" or "property damage",
provided:
a. Liability to such party for, or for the
cost of, that party's defense has also been
assumed in the same "insured contract"; and
b. Such attorney fees and litigation
expenses are for defense of that party
against a civil or alternative dispute
resolution proceeding in which "damages"
to which this insurance applies are alleged.
"Property damage" to:
(1) Property you own, rent or occupy;
(5)
That particular part of real property on which you or
any contractors or subcontractors working directly
or indirectly on your behalf are performing
operations, if the "property damage" arises out of
those operations; or
(6)
That particular part of any property that must be
restored, repaired or replaced because "your work"
was incorrectly performed on it.
Paragraph (2) of this exclusion does not apply if the
premises are "your work" and were never occupied, rented
or held for rental by you.
Paragraph (3), (4), (5), (6) of this exclusion do not apply to
liability assumed under a sidetrack agreement.
Paragraph (6) of this exclusion does not apply to "property
damage" included in the "products - completed operations
hazard".
9
K. "Property damage" to "your product" arising out of it or
any part of it.
L. "Property damage" to "your work" arising out of it or any
part of it and included in the "products - completed
operations hazard".
This exclusion does not apply if the damaged work or the
work out of which the damage arises was performed on
your behalf by a subcontractor.
M. "Property damage" to "impaired property" or property that
has not been physically injured, arising out of
(1) A defect, deficiency, inadequacy or dangerous
condition in "your product" or "your work"; or
(2) A delay or failure by your or anyone acting on your
behalf to perform a contract or agreement in
accordance with its terms.
This exclusion does not apply to the loss of use of other
property arising out of sudden and accidental physical
injury to "your product" or "your work" after it has been
put to its intended use.
N. "Damages" claims for any loss, cost or expense incurred by
you or others for the loss of use, withdrawal, recall, inspection,
repair, replacement, adjustment, removal or disposal off
(1) "Your Product";
(2) "Your Work"; or
(3) "Impaired property";
if such product, work or property is withdrawn or recalled
from the market or from use by any person or organization
because of a known or suspected defect, deficiency,
inadequacy or dangerous condition in it.
36. Exclusion B precludes coverage for property damage for which the insured is
obligated to pay "damages" by reason of the assumption of liability in a contract or agreement.
37. According to NHP's Underlying Amended Complaint, BCC's liability is based upon
a contract with NHP guaranteeing BCC Development's obligations and undertakings under the
10
Development Contract. As a consequence, exclusion B operates to exclude coverage for damage
by reason of the assumption of liability in a contract.
38. Further, exclusions J through N, known as the "business risk" exclusions, preclude
coverage for damages relating to the repair or replacement of an insured's defective product or
workmanship. Based upon the business risk exclusions, there is no coverage with respect to
NHP's claims.
39. The policy also provides in Endorsement 6 as follows:
This insurance applies only to "bodily injury", "property damage",
"personal injury" or "advertising injury" arising out of the
ownership, maintenance or use of the premises as shown in the
schedule and operations necessary or incidental to those premises.
40. This endorsement reflects the parties agreement, as established during the
underwriting process, that Caliber One would be insuring BCC's operation of nursing homes --
as opposed to the much more volatile risk of constructing buildings.
41. The property damage did not arise out of the ownership, maintenance or use of the
scheduled nursing homes, but rather arose out of a construction project. Since this was not the
risk under~vritten and referenced in Endorsement 6, Caliber One has no duty to provide liability
coverage to BCC for NHP's claims in the underly/ng matter.
42. Upon information and belief, coverage is also precluded under the known loss or loss
in progress doctrines because all or some of the claimed damages resulted from a cause and/or
condition that pre-dated the inception date of the applicable policy.
44. Upon information and belief, coverage is precluded due to BCC's failure to
disclose material information regarding the nature of the risk during the acquisition of insurance.
45.NHP discharged BCC's liability with respect to its obligations under the Development
Contract or otherwise related to or arising from operation of the facility in thc release agreement
dated January 12, 2001. Because BCC's liability has been extinguished, there can be no
coverage under the liability policy.
11
46. Further, upon information and belief, there is no coverage for NHP's claims in the
underlying litigation because the claimed damage was not caused by a fortuitous or unexpected
covered event.
WHEREFORE, plaintiff, Caliber One, respectfully requests this Honorable Court to enter
an order:
a)
b)
c)
d)
e)
0
that a declaratory.~udgment is entered construing the provisions of
the policy of insurance issued by Caliber One and determining the
respective fights and obligations of the parties thereunder and
under all the circumstances set forth above;
that Caliber One is not or will not be obligated to pay for the
defense of, pay on behalf of or indemnify BCC for the claims
made under the policy issued to BCC by Caliber One;
that Caliber One is entitled to recover all amounts incurred in
connection with the defense of the underlying lawsuit;
that BCC Development is not an insured under the Caliber One
policy;
awarding Caliber One its counsel fees incurred in this matter; and
any and all such other relief as the Court deems just and proper.
COZEN O'CONNOR
BY: '~"'X "'- - - '~i~;~
WILLIAM F. STEWART, ESQUIRE
Attorney for Plaintiff, Caliber One
Indemnity Company
12
VERIFICATION
I, John J. Murphy, Jr., do hereby depose and state that I am authorized, on behalf of
Caliber One Indemnity Company, to make this Verification; that I have reviewed the foregoing
Complaint; and that the facts contained therein are true and correct to the best of my information
and belief. 1 understand that the statements made herein are made subject to the penalties of 28
U.S.C. § 1746 relating to unsworn falsification to authorities.
Vice President
Dated: Aprilt:,~0s', 2004
13
Apr-~0-04 03:]6pm From-Cozen O'Connor
"'
IN THE CIRCUIT COURT OF FLORIDA
FOR THE lqRST JUDICIAL CIRCUIT
IN AND FOR w-qCAMBIA COUNTY
T-?31
F-ZOO
NATIONW~)E I4F.4LTR PROPERTIES, [NC.,
Maryland Corporation,
Phinfif~
BCC DEVELOPMENT AND MANAGEMENT
CASE NO. 02-134-CA
DIVISION E
CO., s'Dd.w~n Corpomflo.; BALANCF. D CAR~
CORPORATION, I Dehwire'Cori~ration; BULLOL~ TIC~
AHSOCIAT~S, INC., FIoHch Corporaffou; and
ILF. LENZ COMPANY, a Peuusyl~anh Corpomiion;
Def~udmts.
~ AMKIqDED COMPL~fNT FOR DAMA(~_,S
Plaintiff, Nationwide Health Properges, Inn., offer~ tim fl311owir~ as its first
anmnd~ complaint for
Management Co., Balanc~ Cate Corporation, Bullock 't'i~e Assoeia~, Inc, and H.F-
1. This Court has sub~e~ matter ]urisdt~on over this a~aon pursuant to ~
26.012~(a) ~ ~ ~ is ~ ~ ~ ~ in ~ ~ ~i~ ~
j~ of ~ ~ ~ ~ ~s ~ ~ ~ j~ ~or ~
Apr-30-04 03:1;pm Fr0m-C0z0n O'Connor
Court, end fl,.e D¢~.Adants me Florida Corporations, foreien corporations doing business
i. Morida, eetities d~et hove bcen clinical ~o ]]eve e~Teed into a eoAtreet in th~ SteJ~ of
Florida, entities thnt iutv~ been alleged to bnve committed a In~tch of contrnct in the
· S~te of Plotidn, and/or entities that heve been alle~w,~munittcd a tort or to~s in
the Stn~e of Florida.
2. Venu~ of this a~-ti.on is l~'operly ~n th~ Court pursuant to FlL Stet. Ch. 47.011
arid 47.051, in t~nt ti~ c~sc ofnctJon ~ in l~scembia County, Fintida; a substnnt~
part of the property ~et is the subject of the action is situated in ~sesmbia Count,
Florida; end ~te Defendents ar~ subject to personal jmisdiction in Escembia County,
3. P~, Nationwide Heellb Properties, Inc. ~ is a Masylend
Corporation with its Mincipal phco ofbusinees in CMifomin.
4. I~ Bullock. Tloc Aseooiatc~ Inc. ("Bullock Tim"), is a Florida
Cotlxn~on with its princll~l ~ of .~ne~. at 909 East CervanM~ ~te B,
Pensacola, Florida 32501. BLdlock Tic~'s l~stered ager~ ~ sm'vice ofprocees is,~olm
P. Tic, e~ Jr~ g0~ Fast Cervantes, Suite B, Pensacola, Florida 32~01.
s. Defendant BCC lVfenege,n~--,~ Develolene~
e ~:~lawere corlm.r~tioa with its principel place aft~,,~? in
2
O~:l~pm ~rom-Cozen O'CoAAor
T-T3T P.004/013 F-200
for servlc~ of process is Brian L. Bmih, 5021 Louis~ Drive, Suite 200, Meehanicstni~
PA 17055.
6. Defendant Balanced C~e Coqeorafion ('~CC'.~, is a Delawa~ Coq~oralion
vd~h its principal place or'business in Permsylvan~,_.~.-~. 's=egent for service of process
is Robin L. Barber, 5021 Louis~ I~lve., Suite 200, Mecl]m~z~ PA 17055.
'. ~ its principal place of business at 1407 Scalp A, ve~ue, Johnstown, PA IS~04. II.F.
Le~'s agent fo~ service of process is Miclmcl Craravaglia, Esq. 756 Beaclgand Blvd,
Vm'o Bcach, Florida ~296~.
Apr-90-04 03:T6pm From-Cozen O'Connor ZlS-S65-ZOI3 T-?$I P.00~/013 F-ZOO
complemd in mmplian~e with all the zequirements'of Developmeat Contract and the
plans and specifications for thc Constzuction Ptojecg to provide sufficient supe~on to
insure ~nnplian~e wit~ plans, *-~ applicable laws, roles and r~atioar~ and that ail
wurk by it and a~ b'vb-contract~s would be peneormed h a oompetent and worlananlik~
nmnncr utilizing pm~cssionali~ eccepted ~i~dards.
11. Ptusuant to th~ Developn~p__m Contz~t referenced in perapaph 9, the
Deftendent BCC wes fMarantor of thc Delkudant 9CC Development's obligations and
unde~ under thc Dcvclopmsnt ConUec~
4
Apr-SO-04
03:T?pm From-Cozen O'Connor Z15-655-Z013 T-?01
13. I'ursusre to the De~elopraent Conuact ~d in ~ph 9, D~d~
Bull~k ~ ~ i~ ~ ~ ~ ~ ~ ~, ~ ~i~t ~r ~ Co~n
Co~on
14. ~ ~~
~0~.
Pmj~ ~ ~ ~ ~ ~f.
17. ~ ~ ~
did ~t ~ ~ ~s of ~ ~.~
D~I~
F-ZOO
Apr-;0-04 03:l?pm Froa-Cozen O'Connor Z15-$65-Z013 T-?31 P.007/013 ;-200
'18. Severn1 months after the bufldJn~ was o~ certain defects in thc
eensm~ction and/o~ design of the buil,4h2 became apparent. Thc buildin~ was
expefieae~S severe humidity and rela(~d problems including, but not [imRed to, e~eess
wa~r, mildew, ~eng of metal ma-br~ and .d[I.e~j]~ ot~ ~rtaJn eenb-truc~on
exeea~ed, De~dmt BCC Development a~l De~eadnt BCC baa apec~fi~ ~L~owledge
lhe ~11 exMnt of the def:eets sad problems a~ ~e bu~li~ and ttmt '.he ~ sottr~ otr
such problems was the design of th~ d~ of the b.i~rfi~n~'~ Despite belu~ in a
re~tlionship of trust a~d e, onlidenc~ with lqI-IP and undcrtaki~ m obligation to perform
their duties a~d obligatioas trader their ag~ement wl~ NItP ~sLsmat with NHP's b~t
ivteres~s. De,rulers BCC Devdopme~t a~! BCC .~4tbheld a~d failed tb disalose ra~at
infatuation to NI~, ~l. udJ~ tt~e t~me prior to Ike el~ecutkm el~ ti2e n~reement
l~fsrenced in para~ph 15. BCC and BCC De~opment was in a superior position to
know this ;,,~,'~on, v,'== ~ad=r a d~/to ~ruwlose ~ i~-,,~i~ to ~ and Im~w
tefeum~d in pm'qn~ 15. 9'N1tP .had known ebb infonnati~ namely that ~ likely
cause of e~e deteeets and problems wtth the b~tldTm~ 3~n~ desi~ ~_ .~/~d and were serious
and major.d~are~, NI-IP wotdd oot have ~ the release ~ contained in
a~t~emmt-~ ~n paragraph 15. 'I'nemfo~ laCC and BCC Development
commlued ~audulent, willful and intentional'sots vd'dgn the meanin8 of the a&memeat
referenced in lXn-atruph 1 S above.
6
^pr-30-O4
O$:l?pm From-Cozen O'Connor
21E-;8~-ZOIa T-?ZI P.008/010 F-ZOO
20. Afh:r an investigation was eomplel~d in April 2001, it v~ dL.move~l th~ the
high humidivy and related problems wm~ mmsed by ~ in the design and
construction of the building and its ~mponen~
21. Mom sp~fically, ~1c ~fl~ ~..~~ ~ble~, ~
include, but are not. limited to the ~ollowing:
e. Extreme negei~ve air pre~mc..inside the building;
b. Inoperable e~ comlitionins units;
d. Inadequately md/or improperly designed and/or ins~led PTHP (air
~li~ionin~dh~t pump) units and systems sen,lng ceeb residential unit,
inadcquz~ air flow and oveaeized cooling capa6,'~,
c- ][n~[equat~ly and/or L,¥mperty dm~i~l an~'m' ~ air oonditlonin_~ units
md sysmms servin~ the eonunon ar~as ofthe
L Violation of code provisions applicable to supply air souses for individual
j. Improper vmtfag ~d exhaust air S~cms ~n w~cr beater cnclosu~ en~s in
vio~tion of applicable code
7
Apr-~O-04
From-Cozen O'Connor
k. Improperly constrained and/or designed fire safety
m, lmpropedy designed atl~c ~e~o= s~ i~ violation of applicabl= code
pm~i~io~=; and . ~
n. hnpmper i-~odl.~ion and imulalion ofmofsy~m.
Constm~ion Proje~ and ~ dem~as, includln& but not i_'_,~zl to, ~ cost or'
rclmirs in em amount ih cxcass of ~500,000, and ,the diminution'in value m thc
Construction Project,
O~npleint.
24.
BBF_.ACH O1~ CONTRACT AG~S~NST ~AT,L DIr.~.NDANTS
Plafmif~ ~ incoqmmtes herein by ~efercnca par~rap~ 1-21 of ~
8
Apr-30-04 03:l?pm Fro=-Cozen O'Connor Z15-666-2010 T-?31 P.OIO/OIO F-ZOO
26. Defead~nt~ BCC Developme_~t and BCC b~ ~ir ~ ~ ~
by co~i~ or ~ ~p~bl~ for ~ co~on ~or ~ ~ ~ ~
~y ~-fo~ a~ ~ D~ BCC ~ BCC D~op~t ~ liable m ~ ~r
~ d~a~ ~ ~l ~Jn ~ ~ ~~~ ~ B~ or BCC
27. ~ D~ B~ock ~ ~ ~. ~ ~ ~ ~n~ ~
defects ~s mo~ ~lly set forth above.
28. As.,, dir~t nad proxhn~te result of Tho Dcfe~._~ts and e~ of their breaches
of'contract and the de.f~ in th~ canstruetion and/or dest~n of th~ Cop..~uotion Pmj~-'~
Plaintiff NI4P was requimi ~o lm~.hsne~t subs~ti~. ~ to the Constnmion Proje~
~ of $600,000, nnd the dlminulion ~n value to the Construction Pmjncc
COUI~ 11
PROFESSIONAl, ]q~OLIOlg~Cg AGAINST D~A~
. 29. PI~~~~~ 1-21
30. Def~ H~. ~ nd B~I~ Tiee o~
~o~ ~ ~ ~ ~d~ ~ ~.
9
^pr-30-D4 O3:lTpm From-Cozen O'Connor Zl$-655-ZOI3 T-731 P.OTI/OI$ F-Z00
confo .rman~ ~h applicable building codes, end to perform services in a professional
and worknnmlike manner_
3 I. Defendants H.F. Lenz _,ma Bullock Tice brew, heal zheir ~ve duties to
Plainti~ NHP, through their negligent design aud(.~..~g~,~ion of the Coustruction
Project, as more fully discussed above.
32. As a direct and proximate result o£The Defenda~ z~:l each of their breaches
of duty and ~he d~ects in ~ conb'tn~tfon and/or design of the Construction Project,
PlaintlffNI'~ ~ required to implament substantial repairs to ~he Consms~on PmSect,
e~c~Ss of S600,000, ~ the riimin~trio~ in veluc to
COUNT
~.d~RU.FFF,FOR VIOLATION OF STATUT~ AGAIlqST ALL DgFff~IDANTS
33. Pl.~tlffNl-lP incorporatm hen~byrefe~-n~ paragmp~ 1-21.
S~tcs. which pruvidcs:
533.~4 ~m~gory civfl actior~ - IV~;M;itlf~2~li~ any o~ ~
t~ ~ ~ the ~ ~mim~ ~ng C~s, h~ a ~ of ~ti~
~ ~i~ the vio~oA
35. Ddendants nad each of thmn v~olated Fie, StnL Cb. 553.84 in.that th~
deedgned an&or constructed certain features of the Devei,,~.,,,ent Pro~ect in violation of
applicable building codes ns mom pm'ficularly discussed above.
tO
Apr-SO-04 O~:l?pm ~rom-Cozen O'Connor 215-~85-2013 T-?31 P,OIZ/OI~ F-Z00
3~. As a direct ~md pmx'una~ r~ult of The Dc~-.u&n~s and ~ of ~r
~RAYER
WHEREFORE, Phinfiff-NHP prays:
ll
Apr-30-O4 03:l?pm
From-Cozen O'Connor
~16-$66-2013
T-?31 P.013/013
DATED thi~ 2~d~, of A~t, 2003.
P,~pe~ .t~lly submlli~l,
WTilJam W. Blue, Esq.
Florida !~ No.: 0813095
Tram, Bar]so. I1431
gar ao. 090535d
cooPi~ B~I~E, BLUE & SCHWARTZ, LL~
112 West Green
P~l~, Florida 3234g
850-584-3111
S~O-$S4-S593 (~ax)
for Plainl~'
Willim W. Blue,
12
SHERIFF'S RETURN - REGULAR
CASE NO: 2004-021360 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERI~AND
CALIBER ONE INDENMITY COMPANY
VS
BALANCED CARE CORPORATION
VALERIE WEARY , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
BALANCED CARE CORPORATION
DEFENDANT , at 0916:00
at 1215 NL~NOR DRIVE
MECHA/qICSBURG, PA 17055
FRED ZULLINGER, CFO,
a true
HOURS, on the llth day of May
by handing to
ADULT IN CHARGE
the
, 2004
and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 9.66
Affidavit .00
Surcharge 10.00
.00
37.66
Sworn and Subscribed to before
me this /~ day of
~3 ~ A.D.
~r6thonotary ~t
So Answers:
R. Thomas Kline
05/12/2004
COZEN OCONNOR
By:
SHERIFF'S RETURN - REGULAR
CASE NO: 2004-02060 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CALIBER ONE INDENMITY COMPANY
VS
BALANCED CARE CORPORATION
VALERIE WEARY , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
BCC 5UtNAGEMENT AND DEVELOPMENT CO
DEFENDANT , at 0916:00 HOURS,
at 1215 MANOR DRIVE
MECH3~NICSBURG, PA 17055
FRED ZULLINGER, CFO, ADULT
on the llth day of May
by handing to
IN CHARGE
a true and attested copy of COMPLAINT & NOTICE
the
2004
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
6 00
00
00
10 00
00
16 00
Sworn and Subscribed to before
me this /~ ~ day of
~ A.D.
/P~othonotary ! ! ~
So Answers:
R. Thomas Kline
o5/12/2oo4
COZEN OCONNOR
By:
COZEN O'CONNOR
BY: WILLIAM F. STEWART, ESQUIRE
IDENTIFICATION NO. 59167
200 Four Falls Corporate Center
Suite 400
P.O. Box 800
West Conshohocken, PA 19428-0800
Telephone No. (610) 832-8356
Attorney for Plaintiff, Caliber One
Indemnity Company
Caliber One Indemnity Company
One Oxford Valley, Suite 505
Langhome, PA
Plaintiff,
V.
Balanced Care Corporation
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
BCC Management and Development Co.
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
Nationwide Health Properties, Inc.
610 Newport Center Drive
Suite 1150
Newport Beach, California 92660
Defendants.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
{Texm}
No. 04-2060 Civil Term
AFFIDAVIT OF SERVICE',
I, William F. Stewart, Esquire, being duly sworn according to law, depose and say that I am an
attorney employed by the law firm of Cozen O'Connor, and I did mail by certified mail, return
receipt requested, the 11 th day of May, 2004, a true and correct time-stamped copy of the Civil
Complaint filed in this action to the Defendant, Nationwide Health Properties, 610 Newport
Center Drive, Suite 1150, Newport Beach, California 92660. ,at true and correct copy of the
green receipt card is attached hereto.
Respectfully Submi'Ited,
COZEN O'CONNOR
Dated
WILLIAM F. STEWART, ESQU1RE
Attorney for Plaintiff, Caliber One
Indemnity Company
2
COOPER, BYRNE, BLUE & SCHWARTZ, LLC
BY: WILLIAM W. BLUE, ESQUIRE
FLORIDA BAR NO. 0813095
112 W. Green Street
Perry, FL 32347
Telephone No. (850) 584-3111
Caliber One Indemnity Company
One Oxford Valley, Suite 505
Langhome, PA
Attorney for Defendant, Nationwide
Hearth Properties, Inc.
Balance Care Corporation
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
BCC Management and Development Co.
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
Nationwide Health Properties, Inc.
610 Newport Center Drive, Suite 1150
Newport Beach, California 92660
Plaintiff, : {Term}
:
:
:
:
:
:
:
:
:
:
:
:
Defendants.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 04-2060 Civil Term
NOTICE OF APPEARANCE
YOU ARE NOTIFIED that William W. Blue is entering an appearance in this case on
behalf of Defendant, Nationwide Health Properties, Inc., and copies of all pleadings, motions,
Page 1 of 2
discovery, orders, and other papers filed with the court or served on any party to this action
should be served on the undersigned lawyers at the address below.
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was furnished by facsimile (610) 941-0711 and U.S.
Mail to William F. Stewart, Esq., 200 Four Falls Corporate Center, Suite 400, P O Box 800,
West Conshohocken, PA 19428-0800 this~ <~ day of May 2004.
William W. Blue
Cooper, Byme, Blue & Schwartz, LLC
Fla. Bar No. 0813095
112 West Green Street
Perry, FL 3234.7
(850)584-3111
Fax (850)584-8593
Page 2 of 2
COOPER, BYRNE, BLUE & SCHWARTZ, LLC
BY: WILLIAM W. BLUE, ESQUIRE
FLORIDA BAR NO. 0813095
112 W. Green Street
Perry, FL 32347
Telephone No. (850) 584-3111
Caliber One Indemnity Company
One Oxford Valley, Suite 505
Langhorne, PA
Attorney for Defendant, Nationwide
Health Properties, Inc.
Balance Care Corporation
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
BCC Management and Development Co.
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
Nationwide Health Properties, Inc.
610 Newport Center Drive, Suite 1150
Newport Beach, California 92660
Plaintiff, : {Term}
:
:
:
Defendants.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 04-2060 Civil Term
DEFENDANT NATIONWIDE HEALTH PROPERTIES, INC.'S MOTION FOR
ENLARGEMENT OF TIME TO ANSWER COMPLAINT
COMES NOW, Defendant, Nationwide Health Properties, Inc., by and through its
undersigned lawyers and respectfully requests this Court enter an order enlarging the time by
which Defendant, Nationwide Health Properties, Inc.'s answer is due by ten (10) days, and in
support thereof would show:
Page 1 of 2
1. Defendant Nationwide Health Properties, Inc. does not have local counsel in
Philadelphia.
2. Before Defendant Nationwide Health Properties, Inc.'s attorneys may appear pro hac
vice, they need to retain the services of local counsel in Pennsylvania.
3. This motion is being made in good faith and not for the purposes of delay.
4. the concurrence of opposing counsel was sought before filing this motion, but opposing
counsel was not reached.
WHEREFORE Defendant Nationwide Health Properties, Inc. respectfully requests this Court
enter an order enlarging the time by which Nationwide Health Properties, Inc.'s answer is
due by ten (10) days, and also awarding Defendant Nationwide Health Properties, Inc. any
such additional relief as this Court may deem just and equitable.
C~ERTIFICATE OF SERVICE_
I certify that a copy of the foregoing was furnished by facsimile (610) 941-0711 and U.S.
Mail to William F. Stewart, Esq., 200 Four Falls Corporate Center, Suite 400, P O Box 800,
West Conshohocken, PA 19428-0800 this ~ day of May 2004.
William W. Blue
Cooper, Byrne, Blue & Schwartz, LLC
Fla. Bar No. 0813095
112 West Green Street
Pen'y, FL 32347
(850)584-3111
Fax (850)584-8593
Page 2 of 2
COOPER, BYRNE, BLUE & SCHWARTZ, LLC
BY: WILLIAM W. BLUE, ESQUIRE
FLORIDA BAR NO. 0813095
112 W. Green Street
Perry, FL 32347
Telephone No. (850) 584-3111
Caliber One Indenmity Company
One Oxford Valley, Suite 505
Langhorne, PA
Plaintiff,
Balance Care Corporation
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
BCC Management and Development Co.
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
Nationwide Health Properties, Inc.
610 Newport Center Drive, Suite 1150
Newport Beach, California 92660
Defendants.
Attorney for Defendant, Nationwide
Health Properties, Inc.
COURT OF COMMON PLEAS
CU!MBERLAND COUNTY
No. 04-2060 Civil Term
DEFENDANT NATIONWIDE HEALTH PROPERTIES, INC.
PRELIMINARY OBJECTIONS TO JURISDICTION
COMES NOW Defendant NATIONWIDE HEALTH PROPERTIES, INC., by and
through its undersigned lawyers, pursuant to Penn. R. Civ. P. 1028, and moves this Cour~ for an
order dismissing Plaintiff's Complaint against NATIONWIDE HEALTH PROPERTIES, INC.,
(NHP) and in support thereof would show:
Page 1 of 4
1. This Court does not have personal jurisdiction over defendant, NHP, as NHP is
incorporated in the State of Maryland and has its principal place of business in California. NHP
does not maintain any office in Pennsylvania. NHP does not own any property in Pennsylvania.
NHP has not conducted any business transactions with the Plaintiff, Caliber One Indemnity
Company. See Aventis Pasteur, Inc. v. Alden Surgical Co., Inc., 2004 WL 878301 (Pa. Super.
2004).
2. Pursuant to Penn. R. Civ. P. 2179, venue is not proper in Cumberland County as
NHP does not conduct any business, own any property, or maintain an office in Cumberland
County, Pennsylvania. The transactions and occurrences out of which Plaintiff's Complaint for
Declaratory Judgment arose took place in Escambia County, Florida as set forth in the Plaintiff's
Complaint for Declaratory Judgment.
3. NHP received service of process of the Complaint For Declaratory Judgment by
certified mail, return receipt requested, addressed to the registered agent for NHP.
SUBJECT MATTER JURISDICTION
4. This Court does not have subject matter jurisdiction over the matters as set forth
in the Complaint for Declaratory Judgment from paragraph 7 through paragraph 46. The
underlying litigation referred to in the Complaint for Declaratory Judgment and attached as an
Exhibit to the Complaint for Declaratory Judgment is a suit NHP filed against BCC
Development, BCC Management and Development Co., Bullock Tice Associates, Inc., and H.F.
Lenz Company for construction defects to improvements on property located in Pensacola,
Florida and purchased by NHP from BCC. The case was filed on January 18, 2002 in Escambia
County Circuit Court, Case number 02-134-CA, Division E a~ad is pending before Judge Jan
Shackleford. The Plaintiff, Caliber One Indemnity Company is not a defendant in that case. The
Page 2 of 4
Circuit Court in Escambia County, Florida has primary jurisdiction of all issues pending before it
in said case.
5. NHP is not a party to the commercial general liability and professional liability
policy entered into between the Plaintiff, Caliber One and Defendant, Balanced Care
Corporation, which forms the basis of the Declaratory Action filled by Plaintiff against Balanced
Care Corporation and BCC Management and Development Co.
6. Caliber One is seeking through this action to determine issues that involve parties
and issues that are not properly before this court but have been pending in Escambia, Florida
Circuit Court since January 18, 2002. Judicial intervention by Pennsylvania courts may create
problems of claims preclusion in the Florida action. Accordingly, should this court not dismiss
the pending action against Defendant, NHP, then it should at least stay the present proceedings
pending final resolution of the Florida action.
7. Finally, this court can rule upon the issue of whether Plaintiff should provide a
legal defense to Balanced Care Corporation and BCC Management and Development Co.
without ruling upon the issues involved in the Florida lawsuit.
WHEREFORE, Defendant, NHP respectfully requests this Court enter an order
dismissing this case against NHP for the reasons stated herein, or in the alternative staying this
case pending the resolution of the Escambia County, Florida case and also awarding Defendant
any such additional relief as this Court may deem just and equitable.
Page 3 of 4
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was furnished by facsimile (610) 941-0711 and
Federal Express Mail to William F. Stewart, Esq., 200 Four Falls Corporate Center, Suite 400, P
O Box 800, West Conshohocken, PA 19428-0800 and by U.S. mail to Robert B. Gait, III, Esq.,
Kirkpatrick & Lockhart~ LLP, Miami Center, 20th Floor, 201 South Biscayne Blvd., Miami, FL
33131-2399 on this ~_ day of June 2004.
William W. Blue
Cooper, Byme, Blue & Schwartz, LLC
Fla. Bar No. 08][3095
112 West Green. Street
Perry, FL 32347
(850)584-3111
Fax (850)584-8:593
Page 4 of 4
coOPER, BYPdqE' BLUE 8; SCHWARTZ, LLC
LIAM W BLUE, ESQUIRE
By. WIL _ .,~ a 13095
112 W. Green street
pe~% FL 3234~
Telephone N°' ¢50) 584-3111
¢ ComPlY
c liber one I. ,,~ uite 505
one u
L~ghome'
pl~mtiff,
Balance care Corporation
nor Drive .
1215 Ma. ..... ennsyNanm 17055
Mechan~csum ~, P
and
BCC Management and Development Co.
15Man°rDrive . 17055
12 .... r~, pennsyNanm
Mechan~csuu ~
and
Nationwide Health properties, Inc.
Center Drive, Suite 1150
610 NewpOrt alifornia 92660
Newport peach, C
Defendants.
N~torney for Defendant, Nationwide
Health properties, Inc.
COURT OF coMMON pLEAS
cuMBERLAND coUNTY
No. 04-2060 Civil Term
To: Caliber one
Cozen O' connor
2000 Four Falls Corporate Center
· 400 '~
State NationW~
O BoX $00 19428-0800 ,-~efl Defendant , .~ r~t
~Jest Conshohocken, PA ..... Eesoonse to the en}tt~:~ ~enty ¢0) aa~ -~
-- ~-e hereby no ,. . _~, Ob3ecttc,n~ _
C~ERTIFICATE OF SERVICE
I certify that a copy of the foregoing was furnished by facsimile (610) 941-0711 and
Federal Express Ma/1 to William F. Stewart, Esq., 200 Four Falls Corporate Center, Suite 400, p
O Box 800, West Conshohocken, PA 19428-0800 and by U.S. mail to Robert B. Gait, III, Esq.,
Kirkpatrick & Lockh31~ LLP, Miami Center, 20th
33131-2399 on this ~ day of June 2004. Floor, 201 South Biscayne Blvd., Miami, FL
William W. Blue
Cooper, Byme, Blue & Schwartz, LLC
Fla. Bar No. 0813095
112 West Green Street
Perry, FL 32347
(850)584-3111
Fax (850)584-8593
Caliber One Indemnity Company
One Oxford Valley, Suite 505
Langhome, PA
Plaintiff,
Balance Care Corporation
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
BCC Managemem and Development Co.
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
Nationwide Health Properties, Inc.
610 Newport Center Drive, Suite 1150
Newport Beach, California 92660,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 04-2060
DEFENDANT NATIONVqlDE HEALTH PROPERTIES, INC.'S
AMENDED PRELIMINARY OBJECTIONS
AND NOW, comes Defendant, Nationwide Health Properties, Inc. (hereinafter "NHP"), by
and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and files these
Amended Preliminary Objections as follows:
1. Plaintiff's Declaratory Judgment Complaint was filed on or about May 7, 2004.
2. William W. Blue, Esquire, Florida Counsel for NHP filed Preliminary Objections on
or about June 17, 2004.
PERSONAL JURISDICTION
3. This Court docs not have personal jurisdiction over defendant, NHP, as NHP is
incorporated in the State of Maryland and has its principal place of business in California. NHP does
not maintain any office in Pennsylvania. NHP does not own may property in Pennsylvania. NHP
has not conducted any business transactions with Plaintiff, Caliber One Indemnity Company. See
Avenfis Pasteur, Inc. v. Alden Surgical Co., Inc., 2004 WL 878301 (Pa. Super. 2004).
IMPROPER VENUE
4. Pursuant to Pa. R.Civ.P. 2179, venue is not proper in Cumberland County as NHP
does not conduct any business, own any property, or maintain an office in Cumberland County,
Pennsylvania. The transactions and occurrences out of which Plaintiff's Complaint for Declaratory
Judgment arose took place in Escambia County, Florida as set fbrth in the Plaintiff s Complaint for
Declaratory Judgment.
5. NHP received service of process of the Complaint For Declaratory Judgment by
certified mail, return receipt requested, addressed to the registered agent for NHP. SUBJECT MATTER JURISDICTION
6. This Court does not have subject matter jurisdiction over the matters as set forth in
the Complaint for Declaratory Judgment from Paragraphs 7 tl~rough 46. The underlying litigation
referred to in the Complaint for Declaratory Judgment and attached as an Exhibit to the Complaint
for Declaratory Judgment is a suit NHP filed against BCC Development, BCC Management and
Development Co., Bullock Tice Associates, Inc., and H.F. Lenz Company for construction defects
to improvements on property located in Pensacola, Florida and purchased by NHP from BCC. The
case was filed on January 18, 2002 in Escambia County Circuit Court, Case number 02-134-CA,
Division E and is pending before Judge Jan Shackleford. PlaintiffCaliber One Indemnity Company
is not a defendant in that case. The Circuit Court in Esc~anbia County, Florida has primary
jurisdiction of all issues pending before it in said case.
7. NHP is not a party to the commercial general liability and professional liability policy
entered into between PlaintiffCaliber One and Defendant, Balanced Care Corporation, which forms
the basis of the Declaratory Action filed by Plaintiff against Balanced Care Corporation and BCC
Management and Development Co.
8. Caliber One is seeking through this action to determine issues that involve parties and
issues that are not properly before this court but have been pending in Escambia, Florida Circuit
Court since January 18, 2002. Judicial intervention by Pennsylvania courts may create problems of
claims preclusion in the Florida action. Accordingly, should this court not dismiss the pending
action against Defendant, NHP, then it should at least stay the present proceedings pending final
resolution of the Florida action.
9. In Paragraphs 34 -35 of the Amended Complaint associated with the underlying
litigation and attached to the Complaint for Declaratory Judgment, allegations of violations of
specific Florida Statutes are raised.
10. Finally, this court can role upon the issue of whether Plaintiff should provide a legal
defense to Balanced Care Corporation and BCC Management and Development Co. without ruling
upon the issues involved in the Florida lawsuit.
MOTION TO STRIKE
11. Plaintiff's Declaratory Judgment Complaint is b~ed on an insttrance policy that NHp
is not a party. Plaintiff fails to attach a copy of that policy in direct violation of Pa. R.Civ.P. 1019(i).
12. In its prayer for relief, Plaintiff demands "counsel fees incurred in this matter." An
award of counsel fees under a declaratory judgment action is prohibited in Pennsylvania.
WHEREFORE, Defendant NHP respectfully requests this Court enter an order dismissing
this case against NHP for the reasons stated herein, or in the alternative providing the parties sixty
(60) days to conduct limited discovery regarding the issues ofjurisdiction and of venue. In the event
neither is granted, Defendant NHP requests this Court stay this case pending the resolution of thc
Escambia County, Florida case.
Date: June 18, 2004
MARTSON DEARDORFF WILLIAMS & OTTO
George B. Failer, Jr. v ///%
Attorney I.d. No. 49813
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Defendant Nationwide Health
Properties, Inc.
CERTIFICATE OF SERVICE
I, David R. Galloway, an authorized agent for MARTSON DEARDORFF WILLIAMS &
OTTO, hereby certify that a copy of the foregoing Defendant Nationwide Properties, Inc.'s
Amended Preliminary Objections was served this date by depositing same in the Post Office at
Carlisle, PA, first class mail, postage prepaid, addressed as follows:
William F. Stewart, Esquire
200 Four Falls Corporate Center, Suite 400,
P O Box 800
West Conshohocken, PA 19428-(}800
Robert B. Gait, HI, Esquire
KIRKPATRICK & LOCKHART LLP
Miami Center, 20th Floor, 201
South Biscayne Blvd., Miami, FL 331131-2399
MARTSON DEARD~RFF WILLIAMS & OTTO
David RZ-Gallowa~y "~
Ten East High Street
Carlisle, PA 17013~
(717) 243 -3341
Dated: June __, 2004
Caliber One Indemnity Company
One Oxford Valley, Suite 505
Langhorne, PA
Plaintiff,
Balance Care Corporation
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
BCC Management and Development Co.
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
Nationwide Health Properties, Inc.
610 Newport Center Drive, Suite 1150
Newport Beach, California 92660,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: CiVIL ACTION - LAW
: No. 04-2060
MOTION FOR ADMISSION PRO HA C VICE
I, George B. Failer, Jr., Esquire, counsel for Natiomvide Health Properties, Inc. in the
above-captioned matter, move this Court for admission of William W. Blue, Esquire, pro hac vice
on behalf of Nationwide Health Properties, Inc. and in support thereof, aver as follows:
1. This is an action filed on behalf of Plaintiff against various Defendants, including
Nationwide Health Properties.
2. I am an attorney-at-law of the Commonwealth of Pennsylvania and have been
requested to serve as local counsel to represent Nationwide Health Properties in the above-captioned
action.
3. Attached hereto as Exhibit "A" is an Affidavit from William W. Blue, Esquire, of the
firm of Cooper, Byme, Blue & Schwartz in Perry, Florida, confirming that Nationwide Health
Properties has been represented by William W. Blue, Esquire, tbr the past four years and that he is
intimately familiar with the subject matter of the pending action and that Nationwide Health
Properties desires William W. Blue, Esquire, to appear on its behalf in this case.
4. William W. Blue, Esquire, is an attomey-at-law admitted to practice before the Bar
of the State of Florida.
5. I am acquainted with William W. Blue, Esquire, and can attest to his diligence, ethical
standards and willingness to abide by the Disciplinary Rules of the Supreme Court of the
Commonwealth of Pennsylvania. If admitted to practice before this Courtpro hac vice William W.
Blue, Esquire, will carry out his obligation ably and in accordance with the standards expected by
this Court.
WHEREFORE, I, George B. Faller, Jr., Esquire, request that this Court enter an Order
admitting William W. Blue, Esquire, pro hac vice on behalf of Nationwide Health Properties.
Respectfully Submitted,
MARTSON DEARDORFF WILLIAMS & OTTO
George B. Faller, Esquire
I.D. Number 49813
Ten East High Street
Carlisle, PA 17~13
(717) 243-334
B David R. Gallowa-~
I.D. Number87326
Ten East High Street
Carlisle, PA 17013
(717) 243-334
Attorneys for Defendants Nationwide Health Properties
Date: June ~[, 2004
Caliber One Indemnity Company
One Oxford Valley, Suite 505
PENNSYLVANIA Langhorne, PA
Plaintiff,
Balance Care Corporation
1215 Manor Drive
Mechanicsburg, Peimsylvania 17055
and
BCC Management and Development Co.
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
Nationwide Health Properties, Inc.
610 Newport Center Drive, Suite 1150
Newport Beach, California 92660,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
CIVIL ACTION - LAW
No. 04.-2060
STATE OF FLORIDA
COUNTY OF TAYLOR
AFFIDAVIT
I, William W. Blue, Esquire, being duly sworn according to law, deposes and says:
1. I am an attorney and member in good standing of the Bars of the State of Florida, the
United States Courts of Appeal for the Eleventh Circuit, and the United States District Court for the
Northern and Middle Districts of Florida. I am a member of the law firm of Cooper, Byme, Blue &
Schwartz, L.L.C.
2. I have a long-standing relationship with Defendant, Nationwide Health Properties, Inc.
and have served as its counsel for the past four years.
3. I am intimately familiar with the subject matter of this action and have been requested by
Nationwide Health Properties, Inc. to represent it in connection with this suit. I respectfully submit
that this constitutes good cause to warrant my admission to this Courtpro hac vice.
4. I submit this Affidavit in support of the Motion for Admission to the Bar of this Co,m
pro hac vice and respectfully request that it be granted in its entirety.
COOPER' BYRNE, BLUE & SCHWARTZ, LLC.
William W. BI~ -
112 West Green Street
Perry, Florida 32347
STATE OF FLORIDA
COUNTY OF TAYLOR
Sworn to and subscribed before me this '~Tkda
known to me. ~/~ Y June 20004, by William W. Blue, personally
Notary Publqc - St~e of Flor~
CERTIFICATE OF SERVICE
I, David R. Galloway, an authorized agent for MARTSON DEARDORFF WILLIAMS &
OTTO, hereby certify that a copy of the foregoing Motion was; served this date by depositing same
in the Post Office at Carlisle, PA, first class mail, postage prepaid addressed as follows:
William F. Stewart, Esquire
200 Four Falls Corporate Center, Suite 400,
P O Box 800
West Conshohocken, PA 19428-0800
Robert B. Galt, IH, Esquire
KIRKPATRICK & LOCKHART LLP
Miami Center, 20th Floor, 201
South Biscayne Blvd., Miami, FL 32; 131-2399
MART_~SON/~--~ ~,Dpt~FF WILLIAMS
David'lL'-YGallow ay ~ ~
Ten East High Street ~
Carlisle, PA 17013
(717) 243-3341
& OTTO
Dated: Junec~d_, 2004
JUN 2 2 004
Caliber One Indemnity Company
One Oxford Valley, Suite 505
Langhome, PA
Plaintiff,
Balance Care Corporation
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
BCC Management and Development Co.
1215 Manor Drive
Mechanicsburg, Pennsylvania 17055
and
Nationwide Health Properties, Inc.
610 Newport Center Drive, Suite 1150
Newport Beach, California 92660,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CiVIL ACTION' - LAW
No. 04-2060
AND NOW, this. d f__, 2004, this matter having come before the Court on the
application of William W. Blue, Esquire, and the Court having reviewed the moving papers and
Affidavit of William W. Blue, Esquire, and for good cause shown:
IT IS ORDERED that the Motion for admission Pro Hac Vice of William W. Blue, Esquire,
shall be and hereby is granted.
COZEN O'CONNOR
BY: WILLIAM F. STEWART, ESQUIRE
IDENTIFICATION NO. 59167
200 Four Falls Corporate Center
Suite 400
P.O. Box 800
West Conshohocken, PA 19428-0800
Telephone No. (610) 832-8356
Attorney for Plaintiff, Caliber
One Indemnity Company
Caliber One Indemnity Company
Plaintiff,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v.
Balanced Care Corporation
NO. 04-2060
and
BCC Management and Development Co.
and
Nationwide Health Properties, Inc.
Defendants.
PLAINTIFF'S VOLUNTARY DISCONTINUANCE
COMES NOW, the plaintiff, Caliber One Indemnity Company, by and through their
undersigned counsel, and voluntarily dismisses this action, with prejudice, as to all claims
asserted.
Cozen O'Connor
By: ~~, .
William F. Stewart, Esq.
Attorney for Caliber One
Indemnity Company
Date:
\ \ '--\, ~ ~
CERTIFICATE OF SERVICE
I, William F. Stewart, Esquire, hereby certify that on the \ ,\-\lay of January,
2005, I caused to be served a true and correct copy of the foregoing Plaintiffs Voluntary
Discontinuance upon the following via first-class mail, postage prepaid:
Christopher C. French, Esquire
Kirkpatrick & Lockhart LLP
Miami Center, 20th Floor
201 South Biscayne Blvd.
Miami, FL 33131-2399
William W. Blue, Esquire
Cooper, Byrne, Blue & Schwartz, PLLC
115 West Bay Street
Perry, FL 32347
~~
-;:- --
William F. Stewart, Esq.
2
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