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HomeMy WebLinkAbout09-4885 Johnson, Duffle, Stewart & Weidner By: Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 eds@jdsw.com Attorneys for Plaintiff INSURANCE & SURETY, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff O-A- NO.b4 - y $85 v i l Te-rT, V. CIVIL ACTION - LAW APEX HOMES, INC., ARBITRATION DEMANDED Defendant NOTICE 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 Complaint 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, Pennsylvania 17013 Telephone: 717-249-3166 Toll Free: 800-990-9106 y? 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 comparecencia 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 INMEDIATAMENTE. 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, Pennsylvania 17013 Telephone: 717-249-3166 Toll Free: 800-990-9106 t, , Johnson, Duffle, Stewart & Weidner By: Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 eds@jdsw.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 0 F. y 88 ,?r (,c 7-,u,K- COMPLAINT CIVIL ACTION - LAW ARBITRATION DEMANDED AND NOW, comes the Plaintiff, through its undersigned attorneys, and files this cause of action whereof the following is a statement: 1. Plaintiff is Insurance and Surety, Inc., a Pennsylvania business corporation with its principal place of business located at 3045 Market Street, Camp Hill, and Cumberland County, Pennsylvania 17011. 2. Defendant is Apex Homes, Inc. a corporation organized and existing under the laws of Pennsylvania with a principal place of business located at 415 W. Market Street, Middleburg, PA 17842. VENUE 3. Venue in this action is properly in Cumberland County, Pennsylvania in that the Defendant transacted business with the Plaintiff located in Cumberland and, as hereinafter set forth, the payments claimed to be due by Defendant to the Plaintiff were due at Plaintiffs INSURANCE & SURETY, INC., Plaintiff V. APEX HOMES, INC., Defendant 10 , principal place of business in Cumberland County, Pennsylvania. Lucas Enterprises, Inc. V. Paul C. Harman Company, Inc., 417 A.2d 720 (Pa. Super. 1980). FACTUAL BASIS FOR CAUSES OF ACTION 4. Plaintiff sold and serviced several insurance policies ("subject policies"), including a general liability policy, issued to Defendant. 5. The subject policies provided insurance variously for business insurance coverage for the benefit of Defendant. 6. Premium payments were to be paid by Defendant to Plaintiff at its principal office as averred above located in Cumberland County, Pennsylvania. 7. Defendant is in arrears in premium payments due and owing to the Plaintiff for the subject policies in the amount of $17,956.33. 8. A true and correct copy of an outstanding statement for the premiums due is attached hereto, incorporated by reference herein and marked as Exhibit "A". 9. The Plaintiff has requested that the Defendant pay to Plaintiff the premiums in arrears on several occasions including via certified letter dated June 10, 2009. In response, Defendant asked for an explanation of the total charge due which was given by letter dated June 22, 2009. Despite receipt of this letter, the Defendant has failed or refused to make payment as of the filing of this complaint. A true and correct copy of the June 22, 2009 letter is attached hereto as Exhibit "B". CAUSES OFACTION COUNT I - BREACH OF CONTRACT 10. Paragraphs 1 through 9 are incorporated by reference herein as though the same were more fully set forth herein at length. 11. Defendant, through his purchase and acceptance of the insurance coverage serviced and administered by Plaintiff as set forth above and historical payment of premiums, promised and agreed to pay the premiums to Plaintiff in exchange for coverage provided by the subject policies. 12. By reason of the foregoing, there is due and owing to Plaintiff from Defendant the sum of $17,956.33, as is more specifically itemized and described on Exhibit "A" hereto which is incorporated by reference herein. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $17,956.33, plus interest and costs of suit. COUNT H - UNJUST ENRICHMENT 13. Paragraphs 1 through 12 are incorporated by reference herein as though the same were more fully set forth herein at length. 14. Defendant has had the benefit of the insurance coverage under the subject policies. 16. Defendant was unjustly enriched to the extent that it has had the benefit of the coverage pursuant to the subject policies without paying for premiums as required pursuant to each insurance contract. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $17,956.33, plus interest and costs of suit. JOHNSON, DUFFIE, STEWART & WEIDNER By: Elizabet . Snover Date: 07-20-01) Attorne r Plaintiff :371155 VERIFICATION I, Joseph Buyakowski, Vice President of Insurance & Surety, Inc., verify that I am authorized to make the statements herein and that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: U-17- 01 EXHIBIT "A" A M.320 H00102 . CTS Services, Inc to . EXHIBIT "B" 1 . '70 Insurance & Surety, Inc. P. O. BOX 698 CAMP HILL, PA 17011-0698 June 22, 2009 Kent Jenkins Apex Homes, Inc. 7172 Route 522 Middleburg, PA 17842 Re: Amount Owing Insurance & Surety, Inc. Kent: Please find attached a copy of the 1/1/08 to 1/1/09 General Liability Audit and invoice #11643-1. On the final audit the total credit or return was $22,736.00. It was invoiced to Apex Homes, Inc. and other named insureds including Apex Homes LLC, Paramount Homes of PA, Paramount Apex Homes, Inc., Pine View Realty LLC, Trubiit Development Co., Trubilt LLC, ACE Development LLC, ACE Realty LLC, OX Mountain Milling Company Steel Design. Apex Homes LLC paid $12,338.00 in premiums based on sales of $3,000,000.00. As you can see from the attached audit -0- premium was earned at location #7. Therefore of the $22,736.00 return Apex Homes LLC produced $12,338.00 of the return. Since Apex Homes, Inc. is attempting to completely separate it's self from Apex Homes LLC, the credit was given to Apex Homes LLC of $12,338.00. $5,618.33 and the $12,338.00 equals $17,956.33. The balance due from Apex Homes, Inc. Our agency would have been remiss in not including all named insureds. The principal stockholder of Apex Homes, Inc. was also a major stockholder in Apex Homes LLC or at least we were told so. Apex Homes, Inc. cannot take a credit produced by Apex Homes LLC when Apex Homes LLC owed it and produced the credit to clean it up. I don't think you can have it both ways. In either event Apex Homes LLC, affiliated or not to Apex Homes, Inc. earned the credit and not Apex Homes, Inc. Please pay the amount due and justified of $17,956.33 Sincerely, Insurance & Surety, Inc. Joe Buyakowski 3045 MARKET STREET CAMP HILL, PA 17011 PHONE (717)763-1144 PAX(717)737-7062 (D PI RD-04-71C!' OF THE FPC) i ?F!CNOTAPY 1009 JUL 21 Ali 11: 3 7 tit, v i Y CLIMB Lv N Pt *'78.5o Pp ATM Cjr,w 30 (A P-T* 'aas bt(QS R Thomas Kline Sheriff Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor Sheriffs Office of Cumberland County ov"'Ir of cmtItrrr(?,# LED ^C nc THr Vii :' TAPY n?9 i ;} n n i 12: ?3 OFFICE C:4 FNE SHERIFF ;Ty Insurance & Surety, Inc. , vs. Apex Homes, Inc. Case Number 2009-4885 SHERIFF'S RETURN OF SERVICE; 07/21/2009 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: Apex Homes, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Snyder County, PA to serve the within Complaint and Notice according to law. 07/24/2009 10:50 AM - Snyder County Return: And now July 24, 2009 at 1050 hours I, Joseph S. Reigle Jr., Sheriff o- Snyder County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint upon the within named defendant, to wit: Apex Homes, Inc. by making known unto Kent Jenkins, Vice President at 7172 Route 522 Middleburg, PA 17842 its contents and at the sarne time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.44 July 27, 2009 SO ANSWERS R THOMAS KL E, SHERIFF In The Court of Common Pleas of Cumberland County, Pennsylvania Insurance & Surety, Inc. Apex Homes, Inc. 415 West Market Street Middleburg, PA 17842 vs. Civil No. 2009-4885 Now, July 21, 2009, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Snyder 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, , 20 , at o'clock IVI, served the within upon at by handing to a copy of the original and made known to the contents thereon So answers, Sheriff of County, PA COSTS Sworn and subscribed before SERVICE $ me this day of 20_ MILEAGE AFFIDAVIT SAVED DISK # 094855 MISC. DKT. BOOK # 33 PAGE # 729 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA INSURANCE & SURETY, INC. NO: 09-4885 NOTICE AND COMPLAINT VS APEX HOMES, INC. AFFIDAVIT OF SERVICE AND NOW, July 24, 2009, I, Lewis F. Briggs, Deputy Sheriff for Joseph S. Reigle, Jr., Sheriff of Snyder County, Pennsylvania, being duly sworn according to law deposes and says that the above described Notice and Complaint was served upon Apex Homes, Inc., named defendant, on July 24, 2009, at 10:50 A.M., at 7172 Rt. 522, Middleburg, Snyder County, Pennsylvania, by personally handing to Kent Jenkins, Vice President of Finances a true and correct copy of the above described Notice and Complaint and that I made known to Kent Jenkins the contents of the same. SO ANSWERS JOSEPH S. REIGLE, JR., SHERIFF SNYDER COUNTY, PA. BY: DEPUTY L WIS FCOMMONWEALTH OF PENNSYLVANIA COUNTY OF SNYDER SS: SWORN???T? AND SUBSCRIBED BEFORE ME T o?`r„ DAY OF c , 2009 DEPUTATION BY: SHERIFF OF CUMBERLAND COUNTY, PA. SNYDER COUNTY SHERIFF'S FEES: Docketing, Service, Etc. $ 18.00 Mileage 2.00 Notary 5.00 Deposit: $75.00 Receipt # 9068 TOTAL: $ 25.00 T7 PAID TO COUNTY CHECK # REIMBURSED TO PETTY CASH CHECK: # Refund: $50.00 Check # 6542 INSURANCE & SURETY, INC. Plaintiff APEX HOMES, INC. V. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-4885 Civil Term NOTICE TO PLEAD To: INSURANCE & SURETY, INC. c/o Elizabeth D. Snover, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. RHOADS & SINON LLP By: ' Timothy J. ieman One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Apex Homes, Inc. Timothy J. Nieman, Esquire Attorney I.D. No. 66024 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Apex Homes, Inc. INSURANCE & SURETY, INC Plaintiff APEX HOMES, INC. V. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-4885 Civil Term ANSWER AND NEW MATTER Defendant Apex Homes, Inc., by and through its undersigned counsel, files this Answer and New Matter, stating as follows: 1. Admitted on information and belief. 2. Denied that Apex Homes, Inc.'s ("Apex Homes") principal place of business is located at 415 W. Market Street, Middleburg, PA 17842. The remaining allegations of this Paragraph are admitted. 3. The allegations of this Paragraph are legal conclusions to which no response is required. 4. Admitted. 5. Admitted. By way of further answer, the Plaintiff also provided insurance for an entity known as Apex Building Systems, LLC ("Apex Building Systems") 6. Denied as stated. It is admitted that Apex Homes' premium payments were to be paid to Plaintiff. 723761.1 7. Denied. To the contrary, the $12,338.00 credit appearing on the Statement attached to the Complaint as Exhibit "A" is a credit that Apex Homes is entitled to and should not be included as an item of damages in this action. 8. Denied for the reason outlined in Paragraph 7 above. Further, the allegations of this Paragraph relate to a written document that speaks for itself. 9. Denied as stated. Apex Homes admits that Plaintiff has made demand for payment. However, as explained in Paragraph 7 above, Apex Homes does not owe the amount alleged to be owing in the Complaint. Further, the allegations of this Paragraph relate to written documents that speak for themselves. COUNTI 10. The allegations of Paragraphs 1 through 9 above are incorporated herein by reference. 11. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent a response is deemed appropriate, these allegations are denied for the reasons stated above. 12. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent a response is deemed appropriate, these allegations are denied for the reasons stated above. WHEREFORE, Defendant Apex Homes, Inc. respectfully requests that this Honorable Court: (i) dismiss Plaintiff's Complaint; (ii) grant it its costs and reasonable attorneys' fees; and (iii) grant it any other relief deemed appropriate. COUNT II 13. The allegations of Paragraphs 1 through 12 above are incorporated herein by reference. 14. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent a response is deemed appropriate, these allegations are denied for the reasons stated above. 15. Paragraph 15 is missing from the Complaint. 16. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent a response is deemed appropriate, these allegations are denied for the reasons stated above. WHEREFORE, Defendant Apex Homes, Inc. respectfully requests that this Honorable Court: (i) dismiss Plaintiff's Complaint; (ii) grant it its costs and reasonable attorneys' fees; and (iii) grant it any other relief deemed appropriate. NEW MATTER 17. The allegations of Paragraphs 1 through 16 above are incorporated herein by reference. 18. Plaintiff's Complaint and each and every Count thereof fails to state a claim upon which relief may be granted. 19. Plaintiff's claims are barred in whole or in substantial part by the Doctrine of Estoppel. 20. Plaintiff's claims are barred in whole or in substantial part by the Doctrine of Waiver. 21. Any and all losses and damages claimed by Plaintiff were caused by persons, firms or entities other than Apex Homes and over whom Apex Homes did not have direction or control, and for whom Apex Homes is not liable. 22. Plaintiff's claims are barred by its lack of due diligence. WHEREFORE, Defendant Apex Homes, Inc. respectfully requests that this Honorable Court: (i) dismiss Plaintiff's Complaint; (ii) grant it its costs and reasonable attorneys' fees; and (iii) grant it any other relief deemed appropriate. Respectfully submitted, RHOADS & SINON LLP w By: C2 - Timothy J. ieman One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Apex Homes, Inc. VERIFICATION K4 J--G^ C 4T , deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that he is y P o f F-'14 /Ice of Apex Homes, Inc., that he makes this verification by its authority and that the facts set forth in the foregoing document are true and correct to the best of his knowledge, information and belief. '9 h? - z'-?,v-.4 Q - CERTIFICATE OF SERVICE I hereby certify that on this 13th day of August, 2009, a true and correct copy of the foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Elizabeth D. Snover, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 FiLQ?t??C? OF DE TH;ONflTAR f 2H9 AUG 14 AN 10: 38 CUMf3EFto d3 CQMY PEN %M" I Johnson, Duffie, Stewart & Weidner By: Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 eds@jdsw.com INSURANCE & SURETY, INC., Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 09-4885 APEX HOMES, INC., Defendant CIVIL ACTION - LAW ARBITRATION DEMANDED ANSWER OF PLAINTIFF TO DEFENDANT'S NEW MATTER AND NOW, comes the Plaintiff, through its undersigned attorneys, and files this Answer to Plaintiff's New Matter as follows: 17. The allegations of Plaintiff's Complaint are incorporated herein by reference. 18. The averment in this paragraph contains a conclusion of law and fact to which no response is required. If a response is deemed required, the averment in this paragraph is denied. 19. The averment in this paragraph contains a conclusion of law and fact to which no response is required. If a response is deemed required, the averment in this paragraph is denied. 20. The averment in this paragraph contains a conclusion of law and fact to which no response is required. If a response is deemed required, the averment in this paragraph is denied. 21. The averment in this paragraph contains a conclusion of law and fact to which no response is required. If a response is deemed required, the averment in this paragraph is denied. 22. The averment in this paragraph contains a conclusion of law and fact to which no response is required. If a response is deemed required, the averment in this paragraph is denied. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $17,956.33, plus interest and costs of suit. Date: JOHNSON, DUFFIE, STEWART & WEIDNER By: jvl- Efizabe D. Snov r Attorney for Plaintiff 374385 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer to New Matter has been duly served upon the following, by depositing the same in the United States Mail, postage prepaid, in emoyne, Pennsylvania, for first class mail and certified mail delivery on August _?, 2009: Timothy J. Neiman, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Defendant JOHNSON, DUFFIE, STEWART & WEIDNER By: /-- Elizabj#h D. Snover Attor ys for Plaintiff FILE I OF 1W!E 2009 AUG 18 Piz 2: 88 ,,,s _ iN, Johnson, Duffie, Stewart 8~ Weidner By: Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 eds(a~idsw.com INSURANCE & SURETY, INC., Plaintiff v. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NG. 09-4885 CiViL TERM CIVIL ACTION -LAW APEX HOMES, INC, ARBITRATION DEMANDED Defendant PRAECIPE TO DISMISS CASE WITH PREJUDICE TO THE PROTHONOTARY: Please mark the above-referenced matter dismissed with prejudice. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER ,~ Elizab D. Snover Date: / ~ '25 ~ ~ ~ Attorneys for Plaintiffs 383301 n C~~~~ ~ .. ;;~-~. i' 'E`~.v`r '`''r?